Patent Pending

What Is Patent Pending?

A patent pending is used by inventors to let the public know they have filed a patent application with the relevant patent and trademark authority. Patent pending is a legal designation that can be used with any type of patentable process or product to denote that a patent has been applied for but has not yet been granted.

Such a designation serves as a means of notifying the public and other businesses or inventors–notably possible patent or trademark infringers — that they could be held liable for damages once a patent is issued. Such disclosure wording may vary depending on the jurisdiction and may include "patent applied for," "pat. pend," or "pat pending."

Understanding Patent Pending

In the event that their original patent application is granted, a patent pending disclosure affords an inventor with some legal recourse if a competitor tries to imitate their invention. A patent pending notice establishes a priority date for the patent, meaning the first one to file an application gets the patent. However, the patent pending holder cannot sue a potential infringer until a patent is actually granted.

If/when a patent is actually granted, a holder may be able to collect damages, such as back-dated royalties, or may be able to get an injunction or effect a seizure of the items that are similar to the content or artwork listed on their patent application.  

Inventors might use the term “patent pending” in marketing materials, on product packaging, and on the product itself. A patent pending notice does not have to be given in a specified way, and some inventors use variations of the term, such as “Pat. Pend.” Sometimes the notice also displays the provisional patent number granted to it.

Once a patent has been granted or denied, the inventor can no longer use the words “patent pending.” Many jurisdictions allow for the filing of a provisional patent application, a simpler and less expensive process than filing a regular patent application. A provisional patent application may be an appealing alternative for inventors who want to start using the "patent pending" term as soon as possible.

Special Considerations

The United States Patent and Trademark Office (USPTO) does not allow an inventor to apply the words “patent pending” to an invention unless it is in good faith. In fact, it imposes fines of up to $500 for violations, which are considered false marketing. The patent-approval process is very lengthy–it typically takes one to three years but can take as long as five years or more–so the usage of "patent pending" for marketing efforts during this time period is very useful as long as it is lawful.

An invention can still be considered in "patent pending" status even after the patent has been granted or abandoned. Such instances occur when the patent application is resubmitted after the granting or rejection of a patent. A patent pending status granted through a provisional patent lasts for one year. In other instances, a patent pending status can last an average of between three to five years. However, through continuous resubmissions, a patent pending status can last for as long as 21 years.

Once granted, a patent is only valid for up to 20 years from the patent application filing date for utility and plant patents, and 14 years from the date the patent was granted for design patents. Given the limited amount of time an invention can be protected by patent, it makes sense to seek the benefits of a potential patent as early as possible.

Example of Patent Pending

Joe has an idea for a new product. He conducts a patent search and finds that another applicant has already been granted a provisional patent for the improvement. After a year, Joe searches the patent database again and discovers that the patent has not been renewed. He immediately hires a patent attorney and files for a provisional patent. After he has been granted a patent, Joe manufactures a prototype of his new product and markets it with a "patent pending" sticker. After the product hits the market, Joe discovers that the regulatory and capital improvements required for mass-manufacturing his product are pretty steep. Joe abandons the patent after a year and it becomes available to the market once again.