Patent Pending

Patents are not issued from the moment a registrant seeks to register the patent, i.e. from the moment of filing. Rather, there is a very long, expensive, and often taxing period of time between the initial filing of a patent application and the United States Patent and Trademark Office (USPTO) decision to issue the patent in question. While the law takes it time in deciding the merits of the patent application, business must of course continue, and many companies endeavor to leverage the patent application they have already filed through the use of the words “patent pending.”

That said, “patent pending” does not denote patent rights. Rather, it denotes the possibility that the patent may be granted sometime in the future, thus potentially having a deterrent effect on competitors. For example, if a patent is pending on a new type of nuclear reactor, other companies may not want to go out and make huge capital investments in a technology they might later be prevented from utilizing. In other words, the two words “patent pending” alone may tip the risk-reward scale and deter competition from entering the market. Of course, the patent registrant can simply wait to enforce the patent once it has been acquired and avoid the trouble of placing “patent pending” on its wares. Additionally, while the use of “patent pending” might save the registrant some litigation costs further down the road, patent holders often allow the infringement to continue so that they can collect ever-higher damages from the infringer provided notice of the patent is later provided. Ultimately, the business will have to come to a conclusion as to the most beneficial route to take given the market in which the business operates, the amount of potential competitors, and any other relevant factors.

It is important to note that “patent pending” does not necessarily mean that a patent has not issued by the time that product reaches consumers. Patents can be issued in the interim following the decision to use “patent pending” on a particular invention. This is in line with the legal status quo regarding notice of a patent, i.e. that the decision to give notice to the general public of a patent on a particular good is discretionary and entirely in the hands of the holder of the patent. It should also be kept in mind by would-be infringers that a patent claimed to be pending does not necessarily mean that the patent would actually cover the invention. A company seeking to keep competitors out of their market could conceivably use the “patent pending” designation improperly, or at least questionably, such that it might be useful to have a patent attorney research the issue if it arises.

Ultimately, a “patent pending” designation puts would-be infringers on notice of a patent that may issue in the future, and is often viewed as the wisest business approach when it comes to securing a share of an emerging market.