Patents that have been filed but not yet approved have patent pending status.
You can use your pending patent to make, sell, and license the product during this time.
Patent pending is the term used to describe a patent application that has been filed with the patent office, but has not issued as a patent. Patent pending indicates that the inventor is pursuing protection, but the scope of protection, or whether a invention is patentable, is still undetermined.
Put others on notice
Marking an invention “patent pending” puts the public on notice that the underlying product may be protected. Any individual or business who has a non-expired provisional application or a pending non-provisional application may indicate that the related invention is “patent pending”.
Depending on how you file your patent application, pending patent applications may publish from the United States Patent and Trademark Office and become publicly available or may be held in confidence until issuance.
Can't sue until issue.
The patent pending status does not protect the invention, and you can't sue for infringement if someone copies your idea.
You only get full legal protection for your invention once the USPTO approves the patent. Once you receive approval for your patent application, you can take legal action against someone who copies your invention.
If you have submitted a patent application and it is pending, you do have legal rights if someone else tries to file a patent application for something that is the same or very similar. The USPTO looks at the date that each patent application was filed and gives priority to the patent application with the earlier filing date.
The filing date plays a major role in obtaining a patent, especially if other people try to patent or steal it before you can patent it. It can be crucial to start the filing process as soon reasonably possible and avoid publicly disclosing your idea until you have patent-pending status.
Patent pending status starts when you file an application and ends when you abandon a patent application or receive approval of your patent.
Why is Patent Pending Important?
Patent pending may deter other companies from trying to copy your invention. Most companies will not invest the time or money to develop a product that could receive a patent in the near future.
Using patent pending is acceptable on the exact invention that is included in the application, but if you start changing your invention, you may no longer be covered under patent laws unless you submit a new application.
When not to use patent pending?
You should not claim the patent pending status until you have submitted a patent application at the USPTO.
Once you have submitted the patent application, it is up to you whether mark your product with "patent pending". Some businesses or individuals may their product as "patent pending" it to inform the public that a patent application is on file with the USPTO for the invention.
If you choose not to go through the patent filing process, you should never use "patent pending" on any product materials or the product itself.
When to use patent pending
If you have a patent pending serial number, you can begin using it on packaging, marketing materials, ad campaigns, and other outlets.
Marking a product "patent pending" will help alert competitors that you are in the process of getting a patent on your product. If someone else tries to sell or distribute a similar or identical product, you can take legal action once the patent has been granted.
Product and materials that list the patent pending serial number as evidence can help make a stronger case against an infringer, since it clearly show that you indicated patent pending status and that the patent was in process. If you can use your materials or product to prove that the other party willfully infringed on your patent, the infringement damages may be tripled.
You may also be able to get an injunction to stop the infringer from producing the product until the patent process is complete. If the patent does get approved, the holder can sue for damages for up to 18 months after the application is filed. These risks make it less likely for others to copy an idea when it holds the patent pending status. However, in most cases it is difficult to take any type of legal action until you hold an approved patent.
Misrepresenting a patent pending status could put you at legal risk (especially if your patent is denied), so when using the patent pending status, make sure to clearly state that the patent application is pending. Do not confuse consumers by making it look like your product holds a patent when it is actually pending.
What Happens When You Have a Patent Pending?
If anyone else wants to produce something similar, they will have to pay you to license the rights to it, so the potential for earnings will increase if your invention is popular.