Businesses invest significant time and resources into research and development to create innovative new products and services. While creativity and ingenuity are invaluable, companies must also consider intellectual property (IP) protection early in the development process. Understanding what “patent pending” means is an essential first step for safeguarding your latest innovations.
In this blog, we'll break down the patent pending status, why it’s critical for businesses, and how you can leverage it to protect your intellectual property. Read on to learn more about this essential component of bringing new inventions to market.
What Is Patent Pending?
When you see a “patent pending” marking on a product, it means that the inventor or company has submitted an application to the U.S. Patent and Trademark Office (USPTO) for a patent on that product or process. This application has a priority date but has not yet been approved or rejected.
The patent pending status serves to inform others that you are in the process of seeking legal protection for your creation. It also lets competitors know that IP rights may soon be granted, at which point copying your product could constitute infringement.
Patent Application Date
Your patent application filing date is critical because United States patent law prioritizes the first inventor to file a claim rather than the first to invent. By submitting your application early, you stake your place in line with the patent office and establish precedence over anyone else who later files for a patent on the same or similar invention.
Your eventual patent protection and exclusive rights, if granted, will be backdated to the initial filing date of your application. The patent pending period also gives you more time to develop and market your creation before competitors can copy it.
Patent Pending Status
A patent pending marking alone doesn't confer any legal protection to your invention. However, it does indicate that you are in the process of seeking formal protection from the patent office.
Once submitted, your provisional patent application may take 18 months or more to work through the USPTO review system. Patent examiners will assess whether your invention meets the novelty, non-obviousness, and utility standards required to receive a patent. During this review period, you can't take legal action by suing for patent infringement. However, displaying the patent pending designation can alert competitors that IP protections may be on the horizon.
Understanding Patent Protection
It's important to understand exactly what IP is covered during the patent pending phase. The pending application establishes the description of the invention, how it works, and potential claims about the unique aspects that could be patented. Any information disclosed in the application determines the scope of protection while the patent is under review.
Anything not described in the original application generally falls outside the protective sphere. So businesses must carefully consider what IP they want to protect related to a new product or technology and fully detail that in their submission to maximize coverage.
Types of Patents
The USPTO granted nearly 350 thousand patents in 2023.1 Businesses can file several types of patents, each protecting different aspects of IP. These include:
Utility Patents
Utility patents are the broadest and most common applications filed by businesses and individual inventors. They protect the underlying functionality of an invention – the process, composition, machine, or article of manufacture that enables it to perform its intended useful purpose. For example, a pharmaceutical company may file a utility patent on a novel drug compound, while a tech firm could patent the method for encoding data to store on a hard drive.
Design Patents
A design patent protects the unique ornamental appearance of a product rather than its functional workings. To qualify for design protection, the look and aesthetics of an item must be new and original. Common examples of granted design patents include jewelry, furniture, containers, computer icons, and toys that have unique eye appeal.
Plant Patents
Plant patents represent a special category issued for newly discovered, genetically unique varieties of plants that are asexually reproduced. To qualify, the plant variety must be distinct from existing varieties known to the public and reliably maintain those distinct traits from generation to generation. Plant patents have a lifetime of 20 years from the filing date.
Reissue Patents
A reissue patent can be granted to correct errors or deficiencies in a utility patent that the USPTO has already issued. This allows the original patent owner to expand, clarify, or alter their claims related to the invention. Reasons for a reissue could include ambiguity in the original language or simply desiring broader claims that weren't adequately pursued initially. Reissue patents go through a specialized application process but rely primarily on the priority and filing dates of the original patent.
Defensive Publication Patents
Sometimes called defensive disclosure, this type of patent application is published by the USPTO but never issued as an official patent. A defensive disclosure aims to establish details related to an invention as publicly accessible prior art. This can be a strategic move for blocking competitors from later filing patents on similar inventions. Even without obtaining a granted patent, the published details become part of the public domain, which can invalidate subsequent patent claims.
Patent Pending Infringement
The patent pending status leaves an invention vulnerable to potential infringement, though markers provide a warning. Understanding your options if infringement occurs can help businesses protect their rights.
Unintentional patent infringement happens when another party develops an identical or highly similar invention independently. Since their actions are not willful or malicious, damages may be limited to reasonable licensing arrangements.
However, if clear warnings are ignored and deliberate theft of IP seems evident, you may have a case for willful infringement with harsher penalties. Once your actual patent application is granted, you can recover substantial damages from intentional infringers during the pending period.
What Are the Pros and Cons of Patent Pending?
As your business starts the patent filing process, it can be helpful to know the benefits and drawbacks of a pending patent. Here are the pros and cons of the patent pending status:
Pros
One advantage of the patent pending status is that it establishes an early effective filing date for your IP rights, putting competitors on notice and blocking later claims on the same invention. Pending patent applications also buy additional time to develop and market your inventions without concern over legal copies. Plus, displaying a patent pending notice may deter some competitors from attempting to infringe.
Cons
There is no guarantee that your application will ultimately result in an issued patent, and patent pending status alone doesn't allow you to enforce rights or pursue infringement claims in court either. Businesses also must spend considerable legal fees on drafting and submitting patent applications. In rare cases, the information disclosed when filing a patent pending notice can inadvertently assist potential competitors.
Patent Pending FAQs
Below, we answer some frequently asked questions about pending patents:
How Much Does It Cost To File a Pending Patent Application?
A provisional patent application typically costs around $130 to file, but attorneys’ fees for preparing the documentation often exceed $2,000 or more. The total cost varies based on the complexity of your invention.
How Long Can It Take for a Patent Application To Be Approved?
The average patent application took 25 months to reach approval or rejection in January 2024,2 but the process can sometimes take several years.
Is There a Symbol for Patent Pending?
No standard patent pending symbol exists, but “Patent Pending” and “Pat. Pend.” are common designations used by businesses.
When Can You Start Using the Phrase Patent Pending?
You can apply the patent pending notice to your product as soon as your provisional application is filed with the patent office. This status lasts for 12 months and can be renewed annually if still under review after this time frame has passed.
Navigate the Patent Pending Process With Ontologics
Filing for patent approval is an important strategic move for protecting your latest innovations and intellectual property. While not an enforceable right on its own, the patent pending status establishes priority and deters potential competitors from copying your invention during the review process.
At Ontologics, our proprietary data analytics platform is purpose-built to analyze patent filings and emerging technologies so you can make informed strategic decisions. We offer customized competitive analysis, technology scouting, and IP investment services catered to your specific industry and business goals. Contact us today to learn more about how Ontologics can guide your company through the patent application process and beyond.
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