What Does Patent Pending Mean? Why It's Important for Businesses

Patent pending: Meaning, purpose, and date

To gain the right to apply "patent pending" to your invention, you need to file either a nonprovisional or a provisional patent application. While this doesn't mean you own the patent yet, it does mean you have a filing date. Your patent application filing date is now more important than ever.

Until recently, United States patent law gave priority to the first person to actually invent an invention, even if they were not the first person to file. So, even though you had filed for a patent first, another inventor could actually obtain a patent for the same invention if they demonstrated that they had invented it first.

Now, priority goes to the first inventor to file. Additionally, pending patent applications prevent any future publications or patents from qualifying as prior art. Prior art refers to any information available to the public before a patent application's filing date. If prior art exists, an invention can't be patented. If someone publishes some or all of your invention after your filing date, it doesn't qualify as prior art. 

How do I use a patent pending notice?

You'll typically see this term advertised on merchandise or business materials. It serves as a marketing tool that both demonstrates the novelty of the invention and discourages infringement. You can claim "patent pending" status and begin selling your work as soon as you file a provisional patent application, even if your patent hasn't been approved yet.

However, it's illegal to use a patent pending designation without first filing an application. Falsely marking a product as "patent pending" can result in a fine of up to $500. Additionally, you must remove the designation if you abandon your application or the USPTO rejects it. If you become a patent holder, switch the designation from "patent pending" to "covered by U.S. Patent Number XXXXXXX."

What is the scope of a pending patent?

It's also important to understand what kinds of claims your specification supports so you stay within the scope of your pending patent. A patent “specification” is the legal document that describes your invention and its specific aspects. In other words, it's the part of your application where you claim what it is you've invented. Only claims made in the pending patent application are protected, and you can’t add new claims once the patent is filed.

For example, you may have a patent pending on a new kind of machine adapted for cutting cloth. In talks with a company that you want to license your patent, they ask how you would modify the machine to cut metal foil. You think for a moment and realize that with one small change you could use the machine to cut foil. Does your pending patent include that one small change?

If it doesn't, then you need to wait to file a new patent before you tell the company your idea or make sure that you can document that the conversation is confidential. If not, then your discussion with the company will be prior art. You will need to tell the patent office of your conversation and it will be used against you in prosecution if you ever file for a patent on the changes to your design.

Benefits and drawbacks of patent pending

Although patent pending status offers many advantages, it's vital to understand its limitations.

Pros

• Claim priority. Securing an early effective filing date gives your patent claim priority over all subsequent applications.
• Public disclosure and deterrence. Marking your invention "patent pending" notifies the public and competitors it's in the process of obtaining patent protection, deterring infringement.
• Marketing advantages. The designation implies innovation, which can enhance both investors' and customers' perceived value and credibility of the product.
• Extended protection. A patent's term is currently 20 years starting from your nonprovisional application. "Patent pending" status from a provisional application adds an extra year of protection.

Cons

• No legal enforcement. Unfortunately, patent pending status doesn't legally enforce your claim to the patent until it's issued by the USPTO.
• Uncertainty of patent grant. Similarly, not all pending applications receive patents; the invention must meet specific patentability criteria, none of which will be determined until you invest the time and resources to file a nonprovisional patent application.
• Limited scope of protection. The patent pending status only applies to the invention outlined in your application. If you want to adapt, expand, or improve the patent, you'll have to reapply.

While it's impossible to avoid some of these drawbacks if you want to receive a patent, you can minimize potential risks by making sure your provisional application is as thorough as possible.

The patent application process

While every case is different, you can generally get a federal patent by following these five steps:

1. Choose the type of application and patent. The USPTO recognizes three types of patents: utility, design, and plant. Once you know which patent applies to your invention, choose between a provisional and nonprovisional application. A provisional application gives you patent pending status while you prepare your nonprovisional application. It's faster and extends your patent term by a year, but you won't receive a patent until you file a nonprovisional—or complete—application. 
2. File a patent application. To file a patent application, you or your registered patent agent/attorney needs to apply with the USPTO. You can do this yourself by creating an account through the Patent Center, or work with LegalZoom and have a patent attorney file for you. Each patent type has its own specific forms and requirements, so check the relevant patent guide (on the left column). Then, pay the filing fee and submit your application. 
3. Receive patent pending status. At this stage, your patent is pending and you can advertise that status. This phase lasts until your patent is granted, denied, or you abandon it. The duration varies depending on the patent office, complexity of the invention, and other factors. You can monitor processing times on the USPTO website.
4. Patent examination process. The USPTO will assign an examiner to review your application and determine if it meets the requirements to receive a patent. If you need to make corrections, they'll notify you or your legal representative via office actions. These actions often have strict deadlines, so make sure to respond in a timely manner.
5. Post-grant rights. If your application meets the requirements, you or your legal representative will receive a Notice of Allowance and information about the fees you owe. Once you pay these, you receive your patent! According to U.S. patent law, this gives you “the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States." You maintain this right for a term of 20 years from the date you filed your nonprovisional application. 

Get patent pending status with LegalZoom

Although you have no legal obligation to work with an attorney, the USPTO recommends you do. This is because successfully filing a patent application requires knowledge of patent law and USPTO procedures, as well as scientific or technical knowledge related to your invention.

LegalZoom's provisional patent application service offers guidance from a dedicated attorney, who will prepare and file your application for you. As an add-on, you can also have a professional patent artist create your technical drawings. We’ll check everything for completeness, then file the application with the USPTO for you.

FAQs 

When can you claim you’re patent pending?

You can claim your invention is patent pending once you've filed a provisional or nonprovisional patent application with the U.S. Patent and Trademark Office. Using this designation before successfully submitting an application is illegal and can lead to a fine.

Is there a patent pending symbol?

No, there is no standard patent pending symbol. You can use a variety of phrases to convey this designation, such as the following:

• U.S. Patent Pending
• Patent Pending
• Patents Pending
• Patent pending in the U.S. and Abroad
• U.S. Pat. Pend.
• Pat. Pend.

How much does it cost to apply for patent pending status?

The cost of applying for a patent can range from a few hundred dollars (to file a basic provisional patent application) to $20,000 or more, depending on factors such as the type of patent, its complexity, and whether you hire an attorney.

Can I sell a product that is patent pending?

Yes, you can sell products that are patent pending. However, you don't hold a patent on that product until the USPTO reviews your application and grants the patent. Therefore, it's not legally protected from infringement.

Joe Runge, Esq. contributed to this article.