You’ve probably seen many products marked with “Patent Pending” or “Pat. Pending”—on everything from dishwashers to ballpoint pens to software programs.
The words Patent Pending have a special meaning under the patent laws of the United States and most other countries. “Patent Pending” simply means that the product contains some feature that is the subject of a patent application that is currently active (pending) at a national trademark office.
In sum, it means that you came up with an innovation, you prepared a patent application to seek legal protection for that innovation, and you submitted that patent application to the patent office (in the U.S., this would be the U.S. Patent and Trademark Office—the USPTO).
“Patent Pending” does not mean that any innovation is actually protected by a patent, or that the owner of the patent application can sue for patent infringement (yet). That is not possible until a patent has issued. But because getting a patent can take several years, the words Patent Pending act like a warning—a public notice—that a product may be subject to patent protection.
The U.S. Patent Act (including the most recent revisions, the America Invents Act) includes language that requires a patent owner to “mark” the products that include patent features. You can’t hide the fact that something has patent protection and then sue someone for copying it. That’s why you will see long lists of patent numbers on many products. Of course, this get complicated when we talk about optical disc drives and software and airplanes, which are covered by thousands of different patents issued over many decades (many of which have now expired, but someone has to keep track). The newest version of the law allows you to reference an Internet address where all patents are listed. Anyway, the idea is the same with Patent Pending: to let people know that legal rights may be involved.
You may be familiar with the three types of patents: 1. provisional patent applications, which are not “real” patents because they are not examined and do not become issued patents; they just record your claim of first rights in an invention; 2. Utility patents that protect many different types of inventions, methods of making things, processes, etc.; and 3. Design patents, which protect the ornamental features of an “article of manufacture.” If you have filed any of these three types of patent applications, then you can (and must) state “Patent Pending” or “Pat. Pending” somewhere on your product.
If you have filed a patent application and you do not say Patent Pending, you may be unable to enforce your patent rights.
What if you file a patent application but the patent never issues? (That is, the application eventually goes abandoned.) During the period when it is active at the patent office—which is typically at least 18 months but may be four or more years—you should label your product with Patent Pending. After the patent application goes abandoned, you need to remove Patent Pending from your product.