• December 2019
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When Can Call Your Invention Patent Pending

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It is very common to see the words “patent pending” on a wide variety of items on American shelves. But what does that statement really mean? What does it take to put these “patent pending” on your invention? What does “patent pending” do for you and your invention? And, do you need a lawyer for this process?


Defining the term “patent pending”

Adding a “patent pending” notice in the description of an invention informs others that you have filed a provisional patent application for a patent with the United States Patent and Trademark Office (USPTO). An alternative expression may be used, namely “patent applied for.” Both serve the same purpose.


What is a Provisional Patent Application

A provisional application is a form of patent application that can be used before the filing of a full utility application. A utility patent is a patent that covers the creation of a new or improved—and useful—product, process, or machine. The provisional application acts as a placeholder with the US Patent and Trademark Office – USPTO. This placeholder establishes the filing date of your invention. The filing date matters if another inventor or company attempts to infringe upon your patent. Patent infringement is the unauthorized making, using, offering for sale or selling any patented invention within the United States.


The provisional patent application can be filed before your invention is complete. Further, the details of the application, beyond the processing of fees and basic information, are not actually examined by the USPTO, even upon approval. This truly does act as a placeholder stating that on a given date an inventor stated their intention to file for a non-provisional patent within a year. You are protected during that one year from any other inventor or company trying to steal or utilize a portion of your invention. This is the main reason people seek “patent pending” status.


How does utilizing “Patent Pending” help an inventor?

Using this notice (“patent pending”) informs other parties and inventors that you have started the process of patenting your invention. Once you have an established filing date of your provisional application with the USPTO, other parties can then be held liable if they infringe upon your intellectual property – your future patent.


It is vital to remember that the application by itself and the words “patent pending” do not actually confer any legal protection. You will only be able to challenge any potential patent infringements if the patent is eventually issued by the USPTO – so long as you meet any requisite filing deadlines. Therefore, the notice is purely informational until the process is completed. It then is recognized as due warning that the invention is protected, making anyone infringing upon it liable.


Using “Patent Pending” Without Filing an Application

Even though a patent with a provisional patent filing date does not carry actual protection, that does not mean you can use the phrase without consequence. Under US law, you can only use patent application notices once you have filed an application and it has been accepted for examination. Using the notices when no patent application has been filed is expressly prohibited. The penalty for using the notices in such a way is considered a false marking and is punishable by a fine of up to $500 per offense. Each offense is counted separately, and the fines can quickly become overwhelming in the case of high-volume goods.


Interested in a “Patent Pending” Status?

Since there are some very inherent benefits to obtaining this status, as an inventor it may be time to take the next step and file. Although the provisional patent application does not protect your invention alone or guarantee that you will receive a utility patent, it is still vital that this is done with care. It is often recommended that one utilize the skills of a seasoned patent attorney to successfully navigate the patent process. Each element of your invention must be described properly in order for the protection to apply to all parts of your invention. This is what assures that no one may infringe upon your patent – a full year before applying for the non-provisional patent. It’s useful to have someone working on your patent that has done this many times before, so that you can stay focused on your invention and business.


LawTrades knows Patents

Let us help you successfully and cost-effectively protect your invention. You’ve worked hard to reach this stage, and there is no reason to leave your application up to chance. We have seasoned patent and intellectual property lawyers ready to help you put “patent pending” on your invention.