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What Does "Patent Pending" Mean for an Inventor?

In 1790, the cost of a patent was only about five dollars. Prices have increased significantly since then, but that doesn't mean the number of applications filed has dwindled at all. In fact, in 2016, the number of annual patent applications in the U.S. reached over 600,000.

A patent application is a bit more complicated now than it was in 1790, though. One of the most critical steps in the process is when an application reaches "patent pending" status. Without proficient intellectual property counsel, this step can make or break a patent, because once the application is filed, it cannot be amended and you are effectively limited by what is written in the application.

What Does "Patent Pending" Mean?
The terms "patent pending" and "patent applied for" are frequently used by manufacturers, inventors, and licensees to inform the public that they have applied for a patent for their invention with the USPTO and their application is on file and waiting for examination by the USPTO. The patent pending status will remain in place until the application is allowed or goes into abandonment. The examination of a patent application can take between 18 and 30 months or more, and inventors are encouraged to monetize their invention during this important period of time. While an inventor cannot enforce any rights against potential infringers until the patent issues, patent pending status does provide a deterrent against competitors who do not want to be caught with potentially infringing items in the market. Moreover, a patent application is a patent right which can be licensed to others. Patent lawyers are familiar with the above and are usually tasked with assisting inventors through this process.

When Does "Patent Pending" Status Happen?
An application for a patent is considered pending at the time of filing. If a paper patent application is sent, the process is delayed as the application is not considered pending until received by the United States Patent and Trademark Office. However, inventors will most often have their patent applications filed electronically directly with the USPTO, so the patent achieves patent pending status immediately upon submission. Electronic filing also ensures that the filing is complete, without errors and is actually less expensive than paper filing.

Can a Patent Be Rejected at This Stage?
The patent pending process is a lengthy one and usually includes multiple examinations where the patent Examiner will attempt to limit or reject the application for a patent. Patent Lawyers are uniquely trained to counter these arguments and fight for the broadest protection possible. If the application is ultimately rejected, additional actions can be taken including appeals, reconsideration requests, etc. so that the application can remain in patent pending status for many years if desired. If an application is ultimately abandoned, however, usage of the term “patent pending” is illegal and can result in penalties.

Does "Patent Pending" Status Protect Inventions?
While a patent application cannot be used to assert patent infringement, patent pending status can be used to effectively deter the competition from copying an invention. Generally, it is easier for a company to make a deal with the inventor than risk the costs associated with making a product and bringing it to market only to find out that they have to deal with an issued patent. It is for this reason that patent pending status can be used to make deals long before the USPTO determines the outcome for the application. Also, if a patent is granted, then someone who attempts to make, use, or sell the invention that is claimed in the issued patent can be sued.

Ultimately, a patent has a limited amount of protection under "patent pending" status, an experienced patent attorney can protect an invention from inception to issued patent.

patent pending status



Sean Kaufhold is a founding partner of Kaufhold & Dix Patent Law, a boutique firm specializing in Intellectual Property. He is a patent attorney serving clients who require assistance with patent searches and opinions, patent application preparation and prosecution, trademark application and prosecution, patent litigation advisement, infringement opinions, and clearance studies. Mr. Kaufhold also serves as an advisor for companies as they evaluate current and future intellectual property strategies.


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