Smit & Van Wyk, Inc.

Patent Pending – What Does It Mean?

The term “patent pending” is often seen as a marking on manufactured goods. Patent pending can be shortened to pat. pending or also pat. pend. All three methods used to mark manufactured items are valid. 

What Does Patent Pending Refer To?

The term patent pending means that the owner of the invention has applied for patent rights to the invention and that the application is in process.

As such the invention is already protected against infringement. Once the patent rights are granted, the patent pending phrase is replaced with covered by Country such as Botswana Patent Number …. It is illegal to mark an item with the term patent pending when there is no application filed for such.

Pending refers to waiting or in process. As such any person using the item, must take note that the item is already protected by the intellectual property laws of the specific country.

The term also serves as a warning to potential infringers that liability for damages back dated to the provisional filing date is in place and once the patent is granted, the owner thereof may file a lawsuit for such against the infringers.

Since the patent application can take up to 18 months, the inventor requires some kind of protection against infringement. The patent pending term provides that protection. When filing a PCT patent application, one will also have the right to use the term. It should however, be noted that full protection is not yet in place against infringement.

Only once the application has been approved and the patent rights granted will the patent rights holder be able to take the required legal steps against the infringer.

Competitor companies can thus during the period of patent pending manufacture the same item until the day the patent rights are granted, provided they are willing to risk the possibility of an infringement lawsuit for damages dating back to the original filing date.