Here’s how to get the Patent Pending symbol

The Patent Pending symbol is used to indicate that someone has filed for a patent application but that patent application has not yet been approved as an issued patent.  There is no required format for the patent pending symbol and I have seen it written several different ways with the most common being:

  • Patent Pending
  • Pat. Pending
  • Pat. Pend. 

The US Patent and Trademark Office (USPTO) notes that “...these phrases have no legal effect, but only inform the public that a patent application has been filed with the USPTO. ”  So why do people use Patent Pending?  

Why use Patent Pending?

We already learned that the USPTO does not provide any legal effect for pending patent applications so why bother using the Patent Pending symbol?  Although you cannot actually enforce your Patent Pending application, using Patenting Pending may act as a deterrent to potential competitors, warning them that the innovation they’re eyeing may be off-limits without proper authorization.

Lost profits and collecting royalties

patent royaltyOne of the main reasons why smart inventors mark their product or service with the Patent Pending symbol is to recover lost profits or a royalty after their patent issues.   Under the The American Inventors Protection Act of 1999 (AIPA),  patent applicants received something called “provisional rights” (not to be confused with the provisional patent application) in their published patent applications under 35 U.S.C. § 154(d). Before the enactment of the AIPA, the Court of Appeals for the Federal Circuit had established that patentees could only seek damages for acts of infringement occurring after the issuance of the patent. However, with the introduction of the AIPA, applicants were now eligible to claim damages for infringement that occurred during the Patent Pending period before the patent was officially granted. These provisional rights, also referred to as pre-issuance royalties, afford patentees the opportunity to pursue a reasonable royalty from third parties found to be infringing upon a published application claim. However, these rights are contingent upon the third party having actual notice of the application and a subsequent patent being issued with a claim that is substantially identical.

What this means is that if you mark your product or service as Patent Pending and then your patent application eventually gets approved you have the possibility of collecting royalties from your competition who sold an infringing product while your patent application was pending.

Can a provisional patent application (PPA) use patent pending?

Yes – even a provisional patent application can use the patent pending symbol.  Typically we tell people if they want to be extra safe they should wait a week or two after they file the provisional patent application and get the “official filing receipt” back from the patent office because only then will you know if your provisional patent application was officially accepted and obtained a filing date.  At that point you can safely refer to your invention as Patent Pending.  

Conclusion

In summary we learned that there is no officially approved Patent Pending symbol and that the US Patent Office does not provide any legal effect for the use of Patent Pending.  Most people simply mark their product, service, or webpage with the text “Patent Pending”.  We also learned there are benefits to using patent pending such as:

  • potentially scaring off competition and letting them know you have filed a patent
  • potentially recovering royalties from your competition during the time period between when the patent application first publishes and when it gets approved as a patent.  

Even a provisional patent application can be marked as Patent Pending but because the provisional application never publishes you may not get the ability to recover royalties under provisional patent rights.  I know its all a bit confusing. 

There are many other reasons why it may make sense to file a patent and get patent pending including business reasons and contracting reasons.   More on this here:   The Business Case for Filing a Patent