Patent pending is a term used to indicate that a patent filing is in progress with USA Patent Office. It serves to warn others that a patent application has been made pending the outcome of examinations by the Patent Office that patent rights will be issued regarding the specific invention. Although one cannot take legal action against infringements while the patent is pending, one can do so once the patent rights have been granted.

As such would be infringers are warned by usage of the phrase patent pending that they may be held liable for damages caused by the infringement from the filing date once the patent rights have been granted. The so-called damages may include royalties dating back to the priority or initial filing date. One may not use the phrase of patent pending unless a patent application has been filed with the patent office of the specific country. As such it is essential to note that only once you have filed the patent application at the US Patent Office that you will be able to use the phrase to indicate that a patent is pending.

It is essential to prevent any delays in the patent application to ensure that the patent pending status can change to patent registered as soon as possible for full legal protection. In the USA one may file for a provisional patent for utility patents in which case the inventor must file for the standard patent within 12 months from the provisional patent filing. The inventor still has the right during the application process to use the phrase of patent pending.

With patent application processes differing from one country to another, it is essential to get legal advice regarding the applications, terms that may be used and manner in which products can be marked in the various countries. Contact us at Smit & Van Wyk today to assist with the filing of patent rights in South Africa, Europe, African countries, and the USA.