The short answer is that the moment you officially file and pay applicable filing fees on either a provisional patent application or a regular, or non-provisional, product patent application with the US Patent and Trademark Office (USPTO) an inventor can claim “patent pending” status. This means when marketing or presenting to investors, an inventor may use those coveted words on the invention. However, there are a number of steps and considerations to be made prior to completing either filing that the process takes much longer than a simple submission the USPTO’s website.
The patent pending process begins the moment the USPTO receives your patent application. It can be a provisional or non-provisional application that starts the patent pending process. The process continues until the USPTO issues a patent or denies your application. However, it can also end if you abandon your application. The length of patent pending depends on the backlog at the USPTO and the complexity of the application.
This is the case for anyone hoping to receive and use “patent pending” status on any product in the United States. Each country has its own process and filing for patent pending status will only help to protect your invention in the US.
What Are the Requirements to File a provisional patent application?
It’s required to file a regular patent application within a year of originally filing the provisional patent application if you want to be eligible to claim that filing date later on. The related non-provisional patent application needs to refer specifically to the earlier provisional patent application. The USPTO will compare this application with the provisional application that was filed earlier. If they find the subject matter to be identical in both applications, they will give the inventor the earlier filing date for any patents that they issue.
The Steps Required for Patent Pending
The least expensive and easiest way to get patent pending status is to file for a provisional patent application. The cost ranges from $65 for micro-entities to $139 for small entities to $260 for large entities. This application, however, does not put your application in front of an examiner. It’s a placeholder that gives you one year to file a regular patent application.
To get a patent pending, complete and file an application. The packet should include:
- A cover sheet
- A detailed description of how to build and use your product
- Drawings of your invention
- The required fees.
It is recommended that inventors and attorneys file for a provisional patent application online with the USPTO. This is the preferred system as you get immediate confirmation that the USPTO has received your application. That means you can use a patent pending status immediately. Once you submit the application, the USPTO will send you a patent pending serial number. This number tells other people you’ve applied for a patent.
Filing a provisional product patent application allows you to grab an early filing date, even if you aren’t quite ready to file your official non-provisional patent application. You must turn in the non-provisional application within a year of filing your provisional application to hold on to its filing date for your patent application. If someone else files for the same invention, the USPTO will award the patent to the person with the earliest filing date. The USPTO simply destroys any provisional applications that have not been followed up by the non-provisional application within a year.
How can you use your “patent pending” status?
Once your patent is pending, you can put a notice on your product and any materials you may use to promote it. It’s legal to use patent pending in these cases:
You’ve filed a provisional, design, or utility patent with the USPTO.
You’ve received an Office Action from the USPTO within the last six months.
You’ve received a Notice of Allowance from the USPTO, paid the fee, but the office hasn’t given you a patent yet.
There aren’t set standards on how to mark your product with a patent pending status. You can use any of these or similar terms:
U.S. and Foreign Patents Applied For
U.S. Patent Applied For
U.S. Patent Pending
Patent Applied for in the U.S. and Abroad
Patent Applied For
U.S. Pat. Pend.
What Is Not Considered Patent Pending?
It’s illegal to use the patent pending label on your product or promotional assets if you haven’t applied for a patent or you’ve received your patent. The label only applies for the time when you’re waiting for the USPTO to approve or deny your application. The fine is $500 for each time you falsely use the patent pending status – which will add up rather quickly if you have a high-volume product.
When to avoid using patent pending in marketing:
- You’ve hired an attorney to do your application.
- You have an application draft from your lawyer to edit.
- You receive a patent.
- You abandon your patent application.
Things to Remember
Filing an application for a non-provisional product patent in the US does not always result in a patent. An invention must pass the prior art search and be deemed patentable. There are a few countries that gives a patent to anyone who files an application without examining the application. If you are awarded a product patent, it will last for 20 years from the date you submitted your full application.
Many patents are pending for several years. The processing time is lengthy because the USPTO has a big backlog of applications. With a utility patent application, expect to wait two to five years for the USPTO to grant a patent. Design patents are typically faster and will be decided in a year or two.
Whatever invention you describe in your patent application is what gets patented. If you change your invention after applying, the new version of your product will not be included in the patent. This is an important consideration for anyone who continues tweaking his or her product after applying for a patent.
How a Patent Attorney can help
The act of applying for a patent in order to receive “patent pending” status is the easiest part of the process. Gathering the proper materials, properly describing each element of your invention, and paying all applicable filing fees will eat up the majority of your time and energy. It is valuable to have help along the way from a seasoned patent attorney to go over every aspect of your patent filing process.