Understanding the Use of the “Patent Pending” Phrase

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What Does Patent Pending Mean?

The term patent pending indicates that a patent application has been filed with the relevant patent office and is awaiting examination. In the United States, this refers to filings with the United States Patent and Trademark Office (USPTO).

Using this phrase serves as a notice to others that a patent may be granted in the future for the specific invention. While legal action cannot be taken against infringers during the pending period, the patent holder may claim damages retroactively from the filing date once the patent is granted. These damages may include royalties or compensation for unauthorized use.

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Legal Requirements for Using Patent Pending

It is important to note that the phrase patent pending can only be used if a patent application has been formally filed with the patent office in the relevant country. Misuse of the phrase without a valid filing may result in legal or ethical consequences.

In the United States, inventors can file a provisional patent application for utility patents. The provisional filing allows the inventor to use the patent pending designation while securing a 12-month window to file the full utility patent. During this period, products may be marked as patent pending, giving early notice to potential competitors.

Benefits of Using Patent Pending

Using the patent pending phrase provides several advantages:

  • Deters potential infringers by indicating legal protection is forthcoming
  • Establishes a priority date for potential royalties once the patent is granted
  • Supports marketing and investor confidence by showing that the invention is protected

Delays in the patent application process can hinder the transition from patent pending to patent granted, so timely filings are essential for full legal protection.

International Considerations

Patent application procedures and the use of terms such as patent pending differ by country. Inventors and businesses should seek legal advice regarding:

  • Appropriate terminology for marking products
  • Filing procedures in specific countries
  • Compliance with local patent laws

At Smit & Van Wyk Attorneys, we assist with patent filings in South Africa, Europe, Africa, and the United States, ensuring proper use of patent pending status and full protection of intellectual property rights.

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