What does the term “Patent Pending” mean?
Once a patent application has been filed (provisional or non-provisional) for an invention, the “patent pending” designation may be applied to a product and utilized in business-related dealings (e.g. product/sales literature, etc.) for a specified amount of time as indicated hereafter. Further, it must be stressed that an article marked “patent pending” does not indicate that a patent grant has been actually obtained.
Although the term “patent pending” has no legal effect, some believe that because it communicates to others that legal protection for an invention is being formally pursued through a patent application filing, copying of the invention is minimized due to possible future legal repercussions. Further, exclusionary (legal) rights arise only upon a patent grant. Accordingly, if a patent grant is not eventually obtained, the Applicant will be unable to obtain any type of damages as no legal rights will exist.
The patent pending designation may be employed for up to one year after a provisional patent application has been filed if a non-provisional patent application is not subsequently filed within a year of the provisional application’s filing date. However, if a subsequent non-provisional application is filed within one year of the provisional application’s filing date, than the Applicant is allowed to utilize the “patent pending” designation until the patent application is abandoned or an eventual patent expires (assuming a patent grant is actually received).
It is illegal to use the “patent pending” designation in a variety of situations, including: 1) beyond a year of the filing date of a provisional application if a subsequent non-provisional is not filed; 2) at anytime if a patent application has not been filed; or 3) after the end of the patent term. The penalties for using the “patent pending” designation as indicated previously include a fine of up to $500 for each offense. (see 35 USC 292 – False Marking)