What does “patent pending” mean?
August 10th, 2023
The phrase “patent pending” (sometimes abbreviated “Pat. Pend.”) can be marked on a product or its packaging or marketing material (such as a website) to alert the public that the manufacturer has applied for a patent for the product (or some aspect of it). The phrase “patent applied for” can also be used.
The “patent pending” marking can be used in connection with both a provisional application for a patent and a nonprovisional application. As the US Patent and Trademark Office (USPTO) explains,
A provisional application for patent (provisional application) is a U.S. national application filed in the USPTO under 35 U.S.C. §111(b). A provisional application is not required to have a formal patent claim or an oath or declaration. Provisional applications also should not include any information disclosure (prior art) statement since provisional applications are not examined. A provisional application provides the means to establish an early effective filing date in a later filed nonprovisional patent application filed under 35 U.S.C. §111(a). It also allows the term "Patent Pending" to be applied in connection with the description of the invention.
The fact that a product is marked “patent pending” doesn’t mean that the product is patented, or that it necessarily ever will be patented.
There’s no requirement to use the “patent pending” marking, but it does convey some advantages, as discussed below.
A patent will be pending until the application is granted, denied, or abandoned by the applicant.
The average time that a patent application is pending has increased over the past few years and is about 25.9 months as of January 2023.
The USPTO notes that this “Traditional Total Pendency” period is
The average number of months from the patent application filing date to the date the application has reached final disposition (e.g., issued as a patent or abandoned) which is called a “disposal”. This pendency includes the time periods awaiting action by the USPTO, as well as any time awaiting reply from an applicant.
However, this is only an average, and it can take years longer for a patent to be granted. Accelerated examination can be requested via programs such as the Climate Change Mitigation Pilot Program. The pilot program will be available until June 5, 2023, or until the USPTO accepts 1,000 grantable petitions, whichever is earlier.
The main benefit of patent pending status is that it gives the inventor a priority date for the invention. A too-similar patent application filed after that date will (or should) be rejected.
Once a patent is pending, the inventor can reveal the invention to the world, knowing that the priority has been claimed and no one else can beat the inventor to the patent office.
The “patent pending” marking warns potential competitors that if they invest in bringing a copy-cat product to market, they may be hit with a lawsuit (including an injunction to prohibit such sales) if the patent is eventually granted.
The “patent pending” marking can also deter potential competitors from going to the expense of filing a similar patent application. Even if a pending patent application is eventually rejected, the fact that the application was filed can make it “prior art” that can block the granting of a similar application by a competitor.
A pending patent can also be licensed or sold, though obviously the price/value may be less than for a granted patent, since the buyer/licensee runs the risk that a patent may never be granted. Thus, sales or licenses of pending patents are relatively rare.
Although the owner of a pending patent can’t sue for infringement until the patent has actually been granted, once it has been granted, the owner can claim damages for the period before the patent was granted if certain conditions were met under 35 U.S.C. Section 154(d):
In addition to other rights provided by this section, a patent shall include the right to obtain a reasonable royalty from any person who, during the period beginning on the date of publication of the application for such patent …
(ii) if the invention as claimed in the published patent application is a process, uses, offers for sale, or sells in the United States or imports into the United States products made by that process as claimed in the published patent application; and
had actual notice of the published patent application….
To provide that notice, the patent application must have been published. (Applicants can also file a request for nonpublication of an application). Additionally, applicants can request EARLY publication to maximize the period during which potential damages for patent infringement will accrue.
An invention can remain in “patent pending” status for decades. An applicant can resubmit the same application to the USPTO before the patent is granted or the application is abandoned. The resubmitted application then would have to claim priority back to the first patent application.
This series of patent applications is called continuing applications. An application can remain pending in this way for up to 21 years.
But why would you WANT to keep a patent application pending for 21 years?
The reason is that the scope of the patent claims can be slowly broadened.
Falsely marking a product as “patent pending” to scare off competitors is illegal under 35 U.S. Code § 292:
Whoever marks upon, or affixes to, or uses in advertising in connection with any article, the words “patent applied for,” “patent pending,” or any word importing that an application for patent has been made, when no application for patent has been made, or if made, is not pending, for the purpose of deceiving the public—
Shall be fined not more than $500 for every such offense. Only the United States may sue for the penalty authorized by this subsection.
Also, a competitor who can claim to be injured by such a false “patent pending” marking can file a civil action in a US federal district court. (In other countries, falsely marking a product as “patent pending” can be considered false advertising.)