The phrase “patent pending” seemingly carries significant weight, but its legal significance is often misunderstood. 

Patent Pending Defined 

The phrase “patent pending” may be used in relation to an invention from the date that a patent application disclosing that invention is submitted to the patent and trademark office. Misuse of the phrase can have serious ramifications. Under 35 U.S. Code § 292, it is illegal to falsely mark an invention as “patent pending” where no application disclosing that invention is pending. This means that if you previously filed a patent application, and that patent application is no longer pending, any continued use of the phrase “patent pending” is illegal.

Patent pending status results upon filing, regardless of whether it is a provisional application or a non-provisional application. 

Does Patent Pending Status Offer Protection? 

The phrase “patent pending” indicates to the public that the patent applicant is seeking a patent. This may serve as a deterrent to copycats, however, it is important to note that “patent pending” status does not, on its own, confer any right to sue for patent infringement. The right to sue for patent infringement vests once a patent is granted.

The filing of a patent application provides a filing date. This is significant because currently in the US, the first to file a patent application is given priority even if they may not be the first to invent. As such, it could be prudent to obtain patent pending status as soon as the invention can be disclosed in sufficient detail so that a person skilled in the art could carry out that invention. 

Is it Safe to Sell Patent-Pending Products?

While a patent application is pending, an invention can be marketed, manufactured, and sold. Patent pending status may serve as a deterrent to potential infringers. While in patent pending status, there is no guarantee that a patent will eventually be granted on the invention, and until the patent is granted, there is no right to sue for patent infringement. As such, there is some risk of marketing or selling a patent pending product. 

Additionally, the “Patent Pending” status can enhance the perceived value of the invention, especially in negotiations with investors, partners, or potential buyers. It signifies that the invention has undergone scrutiny and is deemed worthy of consideration for patent protection.

Why is Patent Pending Status Beneficial?

There are many benefits of patent pending status, some of which are:

• It provides you with a priority date, i.e. it secures your place in line regarding the right to protect the invention under patent law
• It can enhance the perceived value of the invention, especially in negotiations with investors, partners, or potential buyers. 
• It may serve as a deterrent to potential copycats

Seek the Help of a Patent Attorney

The patent process is a complex process. An incorrect submission or an improperly drafted application can potentially result in a lost opportunity to secure protection for your invention. Working with an experienced team of New York City patent lawyers who can guide you through the process of protecting your inventions in the United States and in foreign jurisdictions is the first step toward success.