Patent Pending Information

What is “Patent Pending”?

“Patent pending” occurs when a patent application is filed and pending at the U.S. Patent Office.  In other words, you need to have filed the patent application at the U.S. Patent Office and the patent application must not be granted as a patent or abandoned.  Patent pending period starts the day a patent application is filed with the U.S. Patent Office and ends the day either a patent is granted or the patent application is abandoned. 

While patent pending is an important part of the patent process, patent pending does not provide you with any enforceable legal rights against a third-party.  Only a granted patent provides you with patent rights that can be enforced.

How Long is the “Patent Pending” Status?

Patent applications filed in the United States typically have “patent pending” for 1 to 3 years.  However, it is not uncommon for some patent applications (e.g. software and electronic applications) to have patent pending status for 3 to 5+ years.  Until the patent application is abandoned or granted as a patent, the patent application will remain “patent pending” at the Patent Office.

What is Not “Patent Pending”?

If your invention is not in the patent pending status, it is against the law to use a patent pending notice on your product, marketing material or website.  Using a patent pending notice when you have not applied for a patent can result in fines of not more than $500 per offense.  See 35 U.S.C. 292 (False Marking). 

Below are some scenarios when patent pending status does not exist and you should not use a patent pending notice:

  • You have hired a patent attorney to prepare a patent application.
  • A patent attorney sends you a draft of the patent application to review.
  • Your patent application is granted as a patent.
  • Your patent application is abandoned.

Patent Pending Notice

If your invention has a patent pending status, you can use a patent pending notice on a product, marketing material, website or other materials related to the product.  While a patent pending notice is not legally required and does not have any legal effect, it is still valuable to warn third-parties that your invention has a patent application filed and eventually may receive a granted patent.

You can use a patent pending notice if your patent status is legally “patent pending.”  In the following situations, you can use the patent pending notice:

  • A provisional, utility or design patent application has been filed with the U.S. Patent Office.
  • An Office Action has been sent from the U.S. Patent Office within the last six months.
  • A Notice of Allowance has been sent from the U.S. Patent Office and you have paid the issue fee (but the U.S. Patent Office has not issued the patent yet).

Types of Patent Pending Notices

Placing a patent pending notice on a product, marketing material or website is important to provide public notice that you have officially filed a patent application.  After your patent application is filed with the U.S. Patent Office, you can use a suitable patent pending notice.  While there is no required format for a patent pending notice, below are some suitable examples commonly used today:

  • Patent Pending
  • Patents Pending
  • U.S. Patent Pending
  • Pat. Pend.
  • U.S. Pat. Pend.
  • Patent Applied For
  • U.S. Patent Applied For
  • U.S. and Foreign Patents Applied For
  • Patent Applied For in the U.S. and Abroad

The patent pending notice you use must be true and accurate.  You should conspicuously place the patent pending notice on the product itself, product packaging, marketing materials, websites and any other location related to your product.