Patent pending is the term used to describe a patent application that has been filed with the patent office, but has not issued as a patent. Patent pending indicates that the inventor is pursuing protection, but the scope of protection, or whether a patent will even issue, is still undetermined. Marking an invention “patent pending” puts the public on notice that the underlying invention may be protected and that copyists should be cautious. Any applicant who has a non-expired provisional application or a pending non-provisional application can indicate that the related subject matter is “patent pending”.
Manufacturers use patent pending as a warning that a patent may be issued that would cover the item and that copiers should be careful because they might infringe if the patent issues. Once the patent issues, the patent owner will stop using the phrase patent pending.
Applying the patent pending phrase to an item when no patent application has been made can result in a fine. You can only use the term patent pending if you have applied for a patent (provisional or non-provisional). You cannot use the term patent pending if it is not true.
Patents go through a long review process before being approved. During this process, the patent can actually be sent back for re-submission further extending the approval process. By marking an item as “patent pending” or “patent applied for”, the manufacturer is clearly communicating that they have patent in process that may become approved at any time. This warning is considered sufficient to hedge off potential patent infringements.
In most cases, you can obtain an injunction to halt the manufacturing of the patented product until the review process is complete. If the patent is approved, the infringing party can no longer manufacture the product without your approval. Once the patent is approved, a manufacturer must stamp the word “Patent” on all of the particular products. If the manufacturer does not, then the manufacturer will be unable to collect damages if there is an infringement issue.
Fraudulent use of a patent pending designation is prohibited by the law of many countries and inventors should be cautious when marking products or methods that may arguably not be covered by any pending patent application. In some jurisdictions, such as the United Kingdom, a warning notice should ideally mention the number of the pending application.
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