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After reading an answer to this question, I realized how often I see the term used in marketing.

  • What kind of security level does a pending patent give you?
  • Why do so many companies use them? And what level of credibility do they offer?
  • If your patent is pending, does that mean it really could just be a flim flam idea but you haven't submitted any proof for it yet?
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Patent pending means that a patent has been filed but not issued. Filing a patent is expensive serious business and not a flim flam. The notice is there to put potential infringers on notice, like a no trespassing sign. There isn't any real security in it for the maker because if the patent is rejected it means nothing.

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    Couldn't they simply file a "dummy" (that has low-to-no chance of success) so that they can legally use the term "patent pending"? (Using such a term tend to increase sales because potential buyers would go "wow it's patent-pending, had to be good stuff".)
    – Pacerier
    Commented Oct 10, 2015 at 21:22
  • They could, however, 'patent pending' would then only work so long as the patent application is pending. The primary purpose of "patent pending", as Travis G alluded to, is to put the public 'on notice' legally that someone claims intellectual property rights and they infringe them at their own risk. Putting the public on notice is a requirement if one is to recover damages for infringement (a corollary is the requirement of a copyright notice to recover damages).
    – SRDC
    Commented Oct 25, 2015 at 4:20
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As Duckpaddle has said, the mark "patent pending" means that a patent application has been filed but has not yet issued as a patent. The mark generally has no legal effect, except for the provisional rights described in the next paragraph below. In order for the mark to be used properly, however, a patent application must actually have been filed or else a penalty will be assessed according to 35 USC 292.

If a patent issues with claims that are substantially similar to the claims present in the patent application publication, the patentee has some rights under 35 USC 154 to obtain reasonable royalty damages for any infringement occurring prior to the issuance of the patent, provided that the infringer had notice of the patent application publication.

Jeremy Thompson's answer is incorrect, at least under current patent law in the United States. In the U.S., applicants for patents cannot ask the patent office for their patent application to "be put at the bottom of the pile." This type of practice used to happen in the U.S. under what was called Submarine Patents, but Congress enacted laws in 1995 to put an end to that practice. A patent applicant must make a bona fide effort to advance prosecution of the patent application, or the application may become abandoned (see MPEP 714.03.

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In addition to DuckPaddles answer regarding not issued.

Many companies only file to be granted Provision Patents (PPs) and each year when the Patent comes up for review they ask for it to be put at the bottom of the pile.

This way companies dont have to pay the hundreds of thousands of dollars until they realise the idea is good enough and wish to create barriers to entry. More commonly is for companies to wait for competition, issue there provisional patent then put an injunction against a competitor.. its a dirty and expensive business.

I held 3 PP's and the Australian Patent Office and my Patent Attorney charged me about $3500 to have one of the Provisional Patent delayed. This was in 1999, I was only 20 years old and could only afford to do it once.

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  • What is your response to Travis' claim that "Jeremy Thompson's answer is incorrect"?
    – Pacerier
    Commented Oct 10, 2015 at 21:27
  • @Pacerier: Jeremy Thompson's answer relates to Australian patent practice. Travis G's answer relates to US patent practice.
    – user4545
    Commented Oct 13, 2015 at 0:13
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"Patent pending" occurs when a patent application is filed and pending at the U.S. Patent Office. In other words, you need to have filed the patent application at the U.S. Patent Office and the patent application must not be granted as a patent or abandoned. Patent pending period starts the day a patent application is filed with the U.S. Patent Office and ends the day either a patent is granted or the patent application is abandoned.

See http://www.patent-ideas.com/patent-pending-information.aspx for more information about patent pending.

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