Nowadays, you will see many products or articles marked as “patent pending.” But what does patent pending mean? Understanding this can play an essential role for people who want to patent an idea, thinking that the “patent pending” will protect their product.
Patent-pending is a term that we use for patents or inventions that have been filed with the United States Patent and Trademark Office – USPTO. If a product is patent-pending, then it means that the patent might not have been granted by the USPTO yet; instead, the inventor filed for the license to the USPTO. The most crucial benefit of patent-pending is that there is an established priority date for the patent. But the scope of the protection of a “patent pending” invention is still heavily discussed and often misunderstood.
Let’s take a look at what patent pending means in more detail, and what ramifications can such a label have on your invention. Read on if you want to learn more about patent-pending, how you can do it, and everything else that this process includes.
What is Patent Pending?
Products or inventions are marked as patent-pending if the inventor has applied for the patent with the USPTO, but it is still unknown whether the application will be approved or not. Patent-pending marked articles tell competitors that the protection was applied to the USPTO by the inventor and that there might be a patent in place soon.
To be clear about it, “patent pending” does not yet mean that the office has granted the patent. This misconception often confuses inventors and patentees who want to protect their products with a patent-pending label. It merely means that you have filed the appropriate information with the office, but it is still unclear whether USPTO will grant the patent. The status of a pending patent remains as long as the application to the USPTO is still in place. It continues until the license is given or rejected. Another reason is if the patentee removes the claim altogether.
The “patent pending” status puts the public on notice that the inventor filed the invention for patenting and that the product could soon be under the protection of a patent. This can deter copycats from copying your idea. It does not, however, provide you with a 100% safety for your invention as you cannot yet claim the patent as being your own until USPTO grants it.
Why Use the Patent Pending Label?
You can see many products nowadays with the label “patent pending” on it. Why would you use this label and why it might be beneficial for you to do so? Here are some of the best benefits of a patent-pending product.
You will get a Priority Date
A priority date can be an essential thing nowadays, especially with the way the rules have changed in recent years regarding inventions and patents. Getting a priority date can be crucial for you if you want to have the claim for a license, especially if it is a patent that is in high demand.
The priority date is the date when you have filed the patent to the USPTO. This date is critical because it is with this day that you are the first person to submit the license to the office. After this date, every subsequent submission by other possible candidates will be irrelevant, and your patent submission will have the priority when the office decides who they give the patent. It means that the person who first files for the patent usually gets it approved.
For this reason, you might want to secure the pending status as soon as possible. That is especially if many competitors are vying for the patent. Another reason might be because other people might try to copy your invention, which can happen if you have told people about your idea. In most cases, it is better to file the license as soon as possible; however, the important thing is that you also don’t rush it, as it can decrease the chances of the patent getting approved.
You can warn your competitors
If you are facing stiff competition for the patent, you should apply as soon as possible, as there might be a possibility that someone already got involved before you. You can fend off the competition with your patent-pending label and the priority date that it was issued.
The priority comes especially handy if you want to take legal action against any possible infringements after you receive the patent. Before that, it might be unwise to sue someone because you don’t have the protection yet, so you don’t have any legal ground to win the process. But at least you can let them know that you are waiting for the patent and that copying it might be unwise from their part and that it can harm them at a later date when you receive the copyright.
It allows you to market your product
Now you can start to sell your article with the “patent pending” label on it. Many companies or potential buyers are wary of buying products or inventions without the patent, and the patent-pending status might help you with that. However, some will also stay away from your product until it is wholly patented.
But this status will give the possible investors hope and faith that will allow them to put up the money. Additionally, you can start promoting your invention and demonstrate it to a broader crowd. It can help your business significantly, as you can reach the masses with your design with the patent-pending label.
What is more, you can even decide to sell your patent-pending invention and make a quick profit. While this might not be the best idea in the long term, it is undoubtedly an option that some inventors decide to take. If you need financial support, it might be the only way to raise funds for your invention idea. The buyers will, of course, want the long-term profits that the patent can bring.
Does the Patent Pending label protect your invention?
It does, to a certain extent. It is not the complete protection that you can use for legal purposes, but it does give you some breathing space as you navigate the patent process. However, it doesn’t mean that you can start suing everybody that looks like they have copied your idea. At least not until you get the final patent approval.
This label is more of a warning shot to the competition. It lets the competitors know that copying your patent or idea might not be the best thing, as you might soon receive the approval from the USPTO, which is when you can use the document to sue any possible infringements. The patent-pending situation only gives you the priority for the patent, and it does not yet mean that you hold the license. It is a common misconception that often encourages legal proceedings for even the smallest infringements, and you can end up on the wrong side of the law.
Requirements that protect your patent
So the patent-pending status alone doesn’t completely protect your product against competitors, but when do the copycats begin to be entirely liable for any infringements of the license?
Multiple requirements need to be in place before you can start to claim those infringements. Some of the elements are very strict, and you should consider them if you want to take legal action. The first requirement is that the application you give to the USPTO should be under the strict rules of the pre-grant publication. This pre-grant publication usually occurs 18 months after the filing date, but that can vary.
The second, and the most apparent requirement, is that USPTO has approved your patent. It is only at that time that your intellectual property is protected, and you can start using it as the reason for legal claims. You can also begin to sell licenses for inventors that want to make something similar to your patent.
The next requirement is that the claims and the ideas within the patent are similar or identical to those published in the pre-grant publication. It is a requirement that should be respected. If not, you might end up losing the claim to the patent and getting your license rejected.
The last requirement that is needed to take legal action against competitors is that they have been informed about the pre-grant publication before you take legal action.
What parts of your patent are protected?
The answer to this question is sometimes hotly discussed and often an issue when it comes to patent protection. Sometimes, inventors fail to understand this and can lead to unnecessary confusion. What does patent protection entail?
That mainly depends on your patent application and its contents. It does not mean that the entirety of your product or patent is protected. Instead, it means that the license preserves only parts or features included in the application of the invention. If a feature of your product, or a part of your product, is not included in the patent application, then that part is not protected by the patent and can be copied freely by others.
You should include the crucial mechanism or feature in your patent application, and explain it thoroughly. This feature has to be unique, and something worthy of a patent, and you should include as many details as possible. Only this way, a patent application can protect the entirety of your feature that was patented. Failing to do so might lead to unprotected features that are the reason for your invention in the first place. You should describe as many details as possible, and failing to do so can cost you dearly in later stages.
Knowing what is protected and what is not is crucial for inventors, and many don’t understand this. For example, if you decide to change your patent and add an idea after you have filed, then that idea will not be included in the protection, and you might want to submit a new one. This process can be excruciating, especially if you keep on perfecting your patent overtime. It can take a very long time, and there have even been cases where products have had the patent-pending status for 20 years, which is the maximum.
Practical information for getting a patent-pending status
As you may know, getting a patent can be a long and expensive procedure. Sometimes, it might take years to get approved, and it can cost you thousands of dollars before you can get a patent. Knowing some practical information is vital.
The first step is obviously to file a patent with the USPTO. This step will include filling many forms and explaining the invention in detail, which will surely take you a lot of time. If unsure, inventors can always seek help from other professionals in this field. Make sure to explain your patent within the patent application thoroughly, and all the crucial features that you want to be patented. Filing a patent and getting a patent-pending status can cost you anywhere from $65 to $240, but those costs can sky-rocket if you want to have an attorney. That can cost you thousands of dollars.
If the filing process was successful, then the next step will be to wait. Meanwhile, you can start to label your products as “patent pending”: You can use certain marks that tell customers that this is secured intellectual property. You can do this with a trademark sign, or a copyright sign (the little c in the circle). In any case, you can start selling your products under the patent-pending status.
Hopefully, you have learned all there is to know about patent pending. Inventors must understand the scope that a license can protect, and what the patent-pending status can bring. Many people misinterpret it and use it for the wrong reasons, which is why every inventor should know what it means to have a patent-pending product.