Patent Pending: What It Means, And When To Use It

Protecting a new invention can be a daunting prospect in terms of time, money, and navigation of the legal landscape. This is especially true when the USPTO (United States Patent and Trademark Office) is estimating it will take the better part of two years for the average patent application to reach a final determination. This post answers some common questions about the “patent pending” labels used while a patent application is being processed, and what they mean from a legal standpoint.

What Does “Patent Pending” Mean?

The “patent pending” label itself is not overly complex. It signifies that all or some portion of a product or service is the subject of an active patent application.

In broad terms, a patent may be granted for a new and useful innovation, a new plant varietal, or a new ornamental design. This is often desirable both for the patent protection (the legal ability to prevent competitors from bringing infringing products to market) and the value of the patent itself (which the owner can license, sell, or cite to enhance their business value). However, to be eligible for a patent the invention must be new – or, to use the technical term, novel – when the patent application is filed. By the legal definition of novelty, selling or disclosing the invention to any third party may destroy the novelty of an invention and render it ineligible for a patent. Therefore, many inventors begin the process of patenting their inventions before placing them on the market, but do not wait for a final disposition before selling the product. Because the USPTO calculates the length of patent protections from the filing date of the application and not the issuance date of the patent, waiting until after a patent is granted – and exclusionary rights become enforceable – to bring an invention to market could be seen to reduce the number of years a patent grants protection on the market. In this interim period, a “patent pending” label can be used to indicate the invention has not been awarded a patent yet, but the inventor or owner of the intellectual property rights is aware of the value of their invention and actively pursuing a patent.

When Can You Label Your Product “Patent Pending”?

All countries have their own intellectual property laws, and may have different standards for when something can be labeled “patent pending.” In the United States, a “patent pending” label can be used between the date a first patent application is filed and the date a patent is granted. This includes provisional patent applications. If an application is abandoned or a provisional application expires without a non-provisional application being filed, the inventor must stop using the “patent pending” label. It is against the law to label goods or services as “patent pending” without having first filed an application for a patent, or after a patent application has been abandoned. Doing so may be considered false marking, and may result in a fine of up to $500 for each offense.

If a patent is granted, the labeling should be updated to match legal patent labeling requirements. While there is no penalty for failing to mark an invention as patented, not including this labeling may allow infringing competitors to claim they were not aware of the patent and avoid liability for their infringement. Proper labeling of patented materials is important because courts consider notice to alleged infringing parties – whether the other party marketing or using the patented material had knowledge of the patent – in determining liability. If a court finds that infringement occurred without knowledge, a patent owner may not receive compensation for the infringement.

What Legal Protections Does A “Patent Pending” Label Give You?

Unfortunately, very few – at least while the application is being reviewed. Because an inventor cannot assert exclusive rights to the use or sale of an invention until after a patent is granted, there are no patent rights available to stop others from advertising or selling infringing products during the application process. However, once a patent is granted, the patent owner gains the right to seek pre-issuance damages. Generally, this means the ability to sue for infringing acts that occurred after the patent application was published, but before it was granted. The success of a claim seeking pre-issuance damages hinges on the infringing party's knowledge of the patent application at the time that infringement occurred. A “patent pending” label on its own may not be sufficient to create liability, so inventors are best advised to perform regular searches to identify potentially infringing products or services as they arise. While a lawsuit cannot be filed before a patent is granted, inventors can send cease and desist letters to identified infringers. Because a well-drafted letter can be used to show knowledge of the patent application, this may be sufficient to dissuade continuing infringement.

A “patent pending” label can have additional benefits as well. The presence of the label indicates that the invention is of sufficient value to be worth protecting. For consumers, this can increase apparent value in terms of utility and quality. For investors, this can indicate both confidence in the value of the invention and increased business value from the potential intellectual property. And for competitors, although immediate legal action is not available, the presence of the label can be sufficient to dissuade potential infringers from attempting to copy the invention by signifying the inventor's knowledge of its worth and intent to seek legal protections.

If you have more specific questions about your patent application or need assistance with legal drafting or navigating public disclosures, feel free to reach out to our legal team for guidance tailored to your situation. Go to https://long.law/intake to book a free consultation.