What Does “Patent Pending” Mean?
Simply put, a “patent pending” notice is used to indicate that one or more of several types of patent applications have been filed for a particular product and that the applicant may or may not be pursuing or perfecting patent rights. Significantly, neither “patent pending” nor a filed patent application conveys intellectual property rights to an inventor; patent rights only arise when the patent is actually granted.
However, getting a patent application on file for a product has a number of benefits. First, as a practical matter, because a patent grant conveys a legal monopoly, highlighting the “patent pending” status of a product in advertising not only implies a reputation for innovation and investment in a product, it may also send a signal of potential exclusivity and scarcity to consumers—a marketing plus. Second, getting a patent application on file may deter competitors or copycats from investing resources to occupy the same market share for a product, especially where there is a sense that the application is being actively pursued and may actually result in a patent. Relatedly, a patent application may facilitate “provisional rights” against subsequent infringers. Provisional rights allow a patent owner to pursue a reasonable royalty from an infringer from the date that the patent application was first published (a date prior to the patent grant, usually around eighteen months after application).
Importantly, a “patent pending” notice should never be used on a product when a patent application has not actually been filed for the product. This type of activity may constitute “patent mismarking” which is unlawful and punishable by fines of up to $500.00 for each mismarked article.