What Does Patent Pending Mean?

Have you ever watched the reality show Shark Tank where budding entrepreneurs get the chance to pitch their ideas to the sharks in the tank by trying to get any one of them to invest in their ideas?  Okay, I guess you know that the contestants are not literally pitching ideas to real sharks, right?  The sharks are potential investors who have made their dreams a reality by turning their ideas into lucrative empires.  If you have watched the shows, you probably know that the sharks often ask the contestants if they have a patent, and that some of the contestants’ replies are that they have a patent pending.  Do you know what it means to have a pending patent?  If not, read on—even if you know, read on because you may find some valuable information that you may not know.

What does patent pending mean?

Patent pending means a patent application has been filed with the United States Patent and Trademark Office (“USPTO”) but the patent has not yet been granted, and the application has not been abandoned.  Accordingly, patent pending status can be claimed if a patent application has been filed with the USPTO, but the patent has not yet been granted, and the application must not be abandoned.

Patent pending status begins on the day that a patent application is filed and ends on the day that a patent is granted.  Patent pending status will also end on the day that an application for patent is abandoned.  Typically, patent pending status lasts from one to three years.  However, it is not uncommon for certain patent applications to have pending status beyond three years.

Okay, thanks!  But what is an abandoned application?

Abandoned simply means that the application is no longer pending and, therefore, cannot mature into a patent.

How can I search for applications that have patent pending status?

Once an application has been published, which is typically 18 months following the filing date of a non-provisional application (earlier if a provisional application was filed), the application is available on the USPTO’s website using Public PAIR. PAIR (Patent Application Information Retrieval) is the USPTO’s web-based means of electronically viewing the status of patent applications and the related documents.

Are there any legal benefits to obtaining patent pending status?

Only an issued patent can provide an owner of an invention with legally enforceable patent rights.  Hence, patent pending status does not provide any legally enforceable rights.  

Nonetheless, patent pending status can be influential on the decision makers when presenting an invention with patent pending to potential investors, or licensees (as you probably know if you have ever watched Shark Tank). 

Moreover, using a patent pending designation serves to notify the public, businesses, or potential infringers who would otherwise copy the invention that they may be liable for damages (including back-dated royalties), seizure, and injunction once a patent is issued on the claimed technology.