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Patent Pending – What Does It Mean?

Friday, March 12, 2010 5:47 am

Patent Pending simply means that a patent has been filed – no more, no less.

The patent pending notice provides no indication as to whether the patent filing was for a provisional, utility, design or plant. It is unknown if the application was drafted professionally or by the inventor. There’s no indication if a patent search had been done to determine if the filed application had a reasonable expectation of being issued. It just means: patent pending. However, when the notice is used on a commercial product, it can mean so much more.

As you now know, patent pending doesn’t provide any real information other than to inform others who might try to copy the invention that they could be liable for damages if and when the patent issues. Damages in some cases can be financially severe. Complicating matters further is that all pending patent applications are held in confidence by the Patent Office with no public record for at least 18 months, or unless issued earlier. Some inventors even file their applications as “non-publish” which excludes public record until the patent actually issues, which most often take years.

The patent pending notice seems to be straightforward enough, but there is no guarantee that it’s being used properly. Some small-entity inventors file a patent (usually a provisional) and then start making a prototype. Changes then occur while prototyping to lower costs, make it easier to use, or for a variety of other reasons; unfortunately, the finished prototype no longer is covered by the pending application.

Some promotion companies use the patent pending declaration as a marketing ploy. Watch television “pitch men” and you’ll soon hear that their product is patent pending, or that their weight loss pill has a patent pending formula. This type of product pitch attempts to attach credibility to their product by saying that it’s “patent pending in the United States Patent and Trademark Office.” The objective is to insinuate that the product being sold has been vetted and approved by the Patent Office. The pitch men hope that consumers will connect the dots and assume that a patent pending product is therefore of superior quality and value. Alas, that’s seldom the case when used as a marketing ploy.

So what does patent pending really mean? It means that a patent application has been filed and that you better watch out. Watch out for the real meaning behind those two powerful words.

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