Have you ever seen someone on tv say that their product is “patent pending”? You may have wondered what patent pending means. Does this mean they have a unique invention that is protected by a patent? Are they able to sue someone that copies the invention?
People often tout their patent pending status as if it is an endorsement of their invention. In reality, the designation of patent pending status may be different than what you think.
What is the meaning of patent pending?
Patent pending means that someone has filed a patent application with the United States Patent and Trademark Office (USPTO) and the application is still pending. When the application is pending, this means that the application has not been granted a patent.
An application will retain its patent pending status until the application either goes abandoned or issues as a patent.
Can I label my product with patent pending?
If you have a pending patent application filed with the patent office, you can mark your product as patent pending as long as the marking is not done in a deceptive manner. For example, it would be deceptive to file a patent application on a coffee mug and then mark the toaster oven you are selling as patent pending based on the coffee mug application.
Does patent pending give me legal protection?
No, not really. You cannot sue anyone for patent infringement based on the patent pending status of your application at the USPTO. However, the patent pending notice can warn potential competitors that a patent application has been filed and if the pending application becomes an issued patent, the patent rights can be backdated to the date the patent application was filed.
Additionally, the application that has been filed to begin the patent application process and give patent pending status may not have the same scope of protection as the patent that ultimately issues. You should contact a patent attorney for help with determining the legal protection of your ideas.
What is the difference between a granted patent and patent pending status?
A granted patent is an issued patent by the USPTO after a thorough examination process. An officially granted patent meets all the patentability criteria such as novelty, non-obviousness, utility, etc. A patent holder with an issued patent is granted exclusive rights to make, use, sell, or import the invention for a limited time period (typically 20 years from the filing date).
An issued patent will be given a patent number and if the patent is infringed, the patent holder may sue for patent infringement.
In contrast, patent pending status indicates an application has been filed, but the examination process is ongoing, and no patent has been issued. Patent pending status does not give applicant any enforceable legal rights. It is simply a warning to competitors that a patent may be granted in the future.
Here is a summary of the key difference between a granted patent and patent pending status.
| Granted Patent | Patent Pending | |
| Legal Protection | Full exclusive rights to enforce. | No enforceable rights (limited provisional rights in some cases). |
| Status | Approved and issued by the patent office. | Application filed, under examination. |
| Duration | Typically 20 years from filing date. | Temporary, until granted or rejected. |
| Marking | “Patented” or patent number. | “Patent Pending” or “Patent Applied For.” |
| Certainty | Confirmed patentability. | Uncertain outcome; may be granted or rejected. |
| Enforcement | Can sue for infringement. | Cannot sue (except for provisional rights in specific cases). |
Will the Patent Office give me patent pending status on my filing date?
No, there is no such thing as a patent pending notice. When you file your patent application at the patent and trademark office, you will receive an Official Filing Receipt (OFR). But, your patent pending designation begins on your patent application filing date. This is true whether you file a provisional application or a nonprovisional patent application.
Conclusion: Filing a patent application will grant you patent pending status.
Now you know that when someone says they are patent pending it means they have a patent application filed at the patent office. They likely don’t have any legal protection with their pending application, but they may hope to deter potential infringers who would otherwise try and copy their product. One of the easiest ways to become patent pending is to file a provisional patent application. An experienced patent attorney can help you through the patent application process. This will ensure your intellectual property is protected as you start and grow your business.