Have you ever seen a product with the words “patent pending” on it? In this blog, we will explore the what a “patent pending” mark means, when it is appropriate (or not) to use, how to do it properly, and why someone would want to bother with it in the first place.
What Does Patent Pending Mean?
“Patent pending” quite simply means that someone has filed a patent application with the USPTO, and that the application is still pending. This raises two questions – what does “pending” mean, and what type of patent application can you advertise as “patent pending”. As to the first question, a patent application is “pending” from the day it is filed with the USPTO until it either goes abandoned or issues.
Regarding the second question, an applicant is entitled to advertise that any type of patent application filed with the USPTO is “patent pending”. This includes utility, plant, and design patents, as well as provisional patent applications. For more information on the different types of patent applications see our patent FAQ page.
When Can a Product Be Marked as Patent Pending?
A product can be marked as “patent pending” so long as (1) the applicant actually has a patent application pending with the USPTO, and (2) the marking is not done in a deceptive manner. For example, it would not be appropriate to file a design patent application for a beverage bottle, and mark an engine part you are selling as “patent pending” based upon the bottle design patent application.
We will discuss deceptive marking and its potential consequences below.
Who Can Utilize the Patent Pending Mark?
Anyone who files a patent application with the USPTO can use the patent pending mark. Again, this is subject to (1) the application still being pending (you have to remove the mark if the application goes abandoned, or change it to an issued patent mark after the patent issues), and (2) that the patent pending marking is not done in a deceptive fashion.
How To Properly Mark Your Product
A “patent pending” mark can be placed on a physical product, its packaging, and/or on advertising for the product (including on a website). Most use the terminology “patent pending”, but you can also say “patent applied for,” or “any word importing that an application for patent has been made”. See 35 U.S.C. §292.
What Are the Advantages of Using “Patent Pending”?
There are several reasons why an applicant would choose to mark a product as “patent pending”. One is to put competitors on notice that you actively file patent applications to protect your innovations. This can serve as a warning that you intend to enforce your patents rights if and when any patent issues, and thus a deterrent to others in the marketplace who might be looking to try to copy a successful product design.
Another reason is to make it publicly known that you or your company is an active patent application filer. This can be helpful for marketing purposes (e.g., to demonstrate the innovative nature of your company), as well as for prospective investors in a company who will be looking to make sure that their investment is protected by intellectual property.
Potential Issues That Can Happen With Patent Pending
Care should be taken to make sure that patent marking is done correctly and in a way that is not deceptive. Here is what US patent law says about “patent pending” marking:
35 U.S. Code § 292 – False marking
(a)
…
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. (Emphasis added).
So, it is important to make sure that any “patent pending” marking is done accurately and kept up to date as applications progress through the USPTO to avoid the risk of civil penalties under US patent law.
Contact an Experienced Patent Attorney Today
If you have questions about “patent pending” marking or otherwise need assistance protecting your inventions, call us today! At ADD+G, our patent attorneys are available to meet with you in person in any of our Orlando, Miami, Jacksonville or Winter Springs offices, or virtually from anywhere in the world.
Our experienced attorneys help everyone from individual inventors to national and international corporations with not only U.S. patent protection, but also global patent protection in foreign jurisdictions. Our depth of industry and technical experience allows us to assist clients across a wide range of technologies, including mechanical, electrical, computer, and life sciences. We also help clients with post-allowance proceedings before the Patent and Trademark Office and Patent Trial and Appeals Board, including reexamination, reissue, and Post Grant and Inter Partes Review (PGR/IPR) proceedings.
The information in this article is for informational purposes only. ADD+G does not intend to create an attorney-client relationship with you by providing this information, and you should consult a qualified attorney regarding the particular details of your case.
About the Author
John F. Woodson, II is a Registered Florida Patent Attorney based in the Orlando-area. His IP practice areas include patent prosecution, patent infringement studies and client counseling.
