Watching late night TV I often see commercials for new products that use the term “Patent Pending” and wonder if people really know what this means. Patent pending simply means you have filed your patent application in the patent office and it is still “pending” or waiting for an official approval. It is not the same as having an actual patent. This is an important legal distinction as only a fully issued patent can be enforced and used to stop your competition from copying your invention.
Can a provisional patent application (PPA) be patent pending?
Yes – filing a provisional patent application can get you patent pending status. Typically you can use the term patent pending as soon as you file your application but I usually warn people to wait 7-10 days until the patent office send you an official “filing receipt” before you start using this term because sometimes people forget to pay the proper fees or have some other mistake with their patent application and in those cases it is best to wait until you have a good and proper patent application filed before you market your invention as patent pending.
Can you stop other people from copying your patent pending invention?
No – patent pending only means you have filed your patent application. You cannot enforce a pending patent application against your competition and will need to wait until you have a fully issued patent (note that it can take 2-3 years to go through the full patent examination process).
What is the benefit of using patent pending?
There are two main benefits to labeling your new invention as patent pending.
- By properly marking your invention as patent pending you are putting everyone on notice that you have filed your patent application. If your competition knowingly decides to copy you after seeing your patent application then you may be entitled to something called “provisional rights” where you can sometimes recover things like lost profits during the time period when your patent application is published and when it actually issues (note that this only applies to published non-provisional patent applications, not provisional applications).
- A more common reason for using patent pending is for marketing purposes and as a scare tactic. By saying you are patent pending this gives your idea some credibility in the marketplace and may even scare off some would-be competitors that don’t want to risk a patent infringement lawsuit.
The barrier to getting patenting pending is not that high. You simply need to file a proper patent application with the patent office. More often I see this as sales and marketing strategy rather than a solid legal strategy but there are some legal benefits to being patent pending, especially if you file your patent application before your competition.
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