You may find yourself out shopping at your local retailer and come across an item you find particularly interesting. After further review, you see the words “Patent Pending” stamped right on the packaging. What does this mean? Why is this item marked in this fashion with the words patent pending? To put it simply, the inventor or manufacturer of this product have filed for a patent with the United States Patents and Trade Office (USPTO), and are currently going through the approval process. They are letting you know that they have applied for a patent, although it has not yet been issued, this is their idea for a product. One of the reasons to put this designation on a product is to detour other inventors or manufactures from infringing on your idea. The patent approval process can be lengthy, taking approximately 18 months minimum on the quick end and usually longer to get granted. This allows the inventor time to market their idea before they are actually awarded the patent. Patent pending is a tool used to help protect your ideas from others.
The words “patent pending” may bring up other questions: Does putting patent pending on my product idea have any value? Is my product protected legally because I marked it patent pending?
In short, it can be valuable in the sense that it may keep other inventors from trying to patent this idea if they know a patent may be forthcoming soon. It is commonly thought that just because something is marked patent pending that it won’t stop aggressive competitors from infringing upon an idea.
Facts are that a company usually will not want to spend money for research and development of a product if there is a chance it will not be given the patent, due to the fact that someone has beaten them to the punch.
On the other hand, it does not “legally” protect anything. Your idea is not protected until the patent is actually granted; even though you let others know the wheels are in motion. Someone else can legally market, sell, or use your invention before the patent is granted.
Once your patent is issued, you would stop using the words “patent pending”, and start using the phrase “covered by US Patent Number *****”. At this point you are legally protected from others copying your idea.
It’s also important to note that just because you created a product, you do not have the right to use “patent pending” if this is not the case. You are obligated to have applied for the patent with the USPTO before claiming a patent is in process. In fact, using the term “patent pending” in a false or misleading way is a federal crime which may be punishable by major fines and even jail time. Many inventors with small budgets and potential to gain investment capital may be tempted to use this designation before going through the costly and time consuming process. It is important they know the consequences before doing so, as it can lead to major charges against the in a legal sense.
Here is information from the USPTO regarding using the words “patent” and “patent pending”:
A patentee who makes or sells patented articles, or a person who does so for or under the patentee is required to mark the articles with the word “Patent” and the number of the patent. The penalty for failure to mark is that the patentee may not recover damages from an infringer unless the infringer was duly notified of the infringement and continued to infringe after the notice.
The marking of an article as patented when it is not in fact patented is against the law and subjects the offender to a penalty. Some persons mark articles sold with the terms “Patent Applied For” or “Patent Pending.” These phrases have no legal effect, but only give information that an application for patent has been filed in the Patent and Trademark Office. The protection afforded by a patent does not start until the actual grant of the patent. False use of these phrases or their equivalent is prohibited.
In conclusion, patent pending can be valuable to help protect others from infringing on your product idea. However, designating something as patent pending will not protect you legally from others trying to make, use, or sell your invention. Also, it is very important to go through the proper application process with the USPTO before claiming something is patent pending, as false claims are taken very seriously. If you have any questions regarding the patent process, it is advised to seek the council of an experienced Patent attorney.
