Obtaining a patent is not a quick (or easy) process. In the United States, it takes an average of 22 months for a patent to be granted or denied, and that’s a very long time to wait to bring something to market.
That’s why you frequently see new products being offered with the disclaimer “patent pending.” Does this label actually have any value, however?
“Patent pending” is a warning to others
In the U.S., the “patent pending” label is something that inventors can use once they’ve submitted either a provisional or non-provisional patent application to the U.S. Patent and Trademark Office (USPTO). A provisional patent is often the first step in the lengthy process of getting an actual patent and serves to save the filing date while the inventor works to convert the provisional application into a full (non-provisional) patent application. If a patent is eventually awarded, its legal protections will be retroactively applied to the date of the provisional application.
In the meantime, using the phrase “patent pending” essentially warns competitors that the patent application is in process. The phrase itself doesn’t carry any legal protections for you, but your competitors know that – should they try to steal your idea – they could eventually face litigation if the patent is granted. That’s usually enough to deter the average competitor from investing dollars and marketing efforts into a product that someone else has already sought to protect from copycats.
The phrase “patent pending” cannot be used until, at minimum, the provisional patent application is filed, and it must cease being used if you abandon your patent application altogether or when a final decision is made to grant or deny the patent. Misuse of the phrase is considered false marketing and is subject to fines.
Patent law is one of the most complex legal areas out there, and it’s difficult to understand the intricacies of the patent process. If you want to protect your future interests and your right to create, use and sell your inventions as you see fit, you need experienced legal representation to guide you.