• February 2020
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How Long Can You Keep an Idea Patent Pending?

If you are an inventor or you own an innovative business, you likely have concerns about keeping your intellectual property legally protected. It is undeniably important to secure a patent for any new invention as soon as you can. However, the process of applying for a patent is notoriously time-intensive and complex. How can you reassure investors, consumers, and competitors that you’re actively pursuing patent protection for your invention?

By labeling your work “patent pending” you can let investors, competitors, and the public know that you’ve submitted a patent application to the U.S. Patent and Trademark Office. This label signals that you’re serious about obtaining legal protection for your work and that you expect to receive confirmation of an approved patent sometime soon. This effort can inspire investors to support your work and customers to buy your new, innovative product. It can also dissuade competitors from infringing on your intellectual property out of apprehension that you’ll sue them for unauthorized use of your work once your patent is secure.


Patent Pending Status – The Basics

Generally speaking, you can advertise your work as “patent pending” as soon as you submit a patent application to the USPTO and for as long as it takes for the USPTO to render a decision on your non-provisional patent application. However, you can’t use patent pending status if your application is rejected, you withdraw your application, or you fail to submit a provisional patent application within 365 days of submitting a provisional patent application. It is illegal to brand your work as patent pending if you don’t have a valid patent application currently in-process by the USPTO. You can label your work as patent pending as soon as you’ve submitted either a provisional patent application or a non-provisional patent application to the government. You can’t use this label any longer once the USPTO assesses your non-provisional patent application. 


Securing Patent Pending Status

The USPTO accepts two kinds of patent applications from individual inventors and innovative businesses. To formally request patent protection for an invention, you must submit a non-provisional patent application on behalf of an invention. The USPTO evaluates the originality of the work from the filing date associated with the non-provisional patent application. This is important, as prior art may emerge at any time.

Say that you invent something novel now but you don’t submit your non-provisional patent application for six months. In the meantime, someone else submits a non-provisional patent application for the same invention. Even though you have evidence that strongly supports your claim to ownership of the intellectual property, the other party would likely prevail in a legal contest because their non-provisional patent application filing date is listed as earlier than yours. This is one of the many reasons why it’s so important to secure patent pending status as soon as you can.


The Patent Application

Drafting a solid non-provisional patent application takes time and a lot of effort. When you submit a provisional patent application to the USPTO, a corresponding non-provisional patent application submitted within 365 days benefits from the provisional patent application’s filing date. You can’t actually obtain patent protection from filing a provisional patent application. The sole purposes of this process is to extend a favorable filing date to your non-provisional patent application and to allow you to benefit from patent pending status earlier than you would if you only submitted a non-provisional patent application. Provisional patent applications are available for utility patents and plant patents, not design patents.

Remember, you can legally use “patent pending” status as soon as you submit either a provisional patent application or a non-provisional patent application. This status can be used as long as the USPTO is waiting 365 days for your non-provisional patent application to be submitted (after submitting a provisional patent application) and/or while the USPTO is evaluating your non-provisional patent application. The USPTO will generally take between one and three years to evaluate a non-provisional patent application, although software patents can take up to five years.


Intellectual Property Guidance Is Available

Schedule a consultation with an experienced intellectual property attorney at LawTrades. Our team takes great pride in assisting both individual inventors and innovative businesses in obtaining, maintaining, and enforcing their intellectual property rights. Our approach is cost-conscious and efficient, yet personalized, so inventors of all kinds may benefit from an intellectual property attorney’s guidance. We look forward to hearing more about your invention and to learning of how our team may be of service to you.