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Behold, the power of 'patent pending'

One of the benefits of filing a patent application to protect an invention is the ability to use “patent pending” in connection with a product incorporating the invention, and it is not uncommon to see products that are so marked.

Patent pending specifically means that a patent application has been filed in the U.S. Patent and Trademark Office to protect some aspect of the marked product, and the patent pending label can be used only as long as a patent application is actually pending before the USPTO.

During the patent pending period, the patent applicant does not have the legally enforceable rights that come with the actual granting of a patent. A competitor may thus be able to produce and sell a similar or identical product during the patent pending period without likely consequence.

Despite this, the “patent pending” marking may have the effect of discouraging a potential competitor from entering the market with a similar product since the competitor has no control over if and when a patent might be granted to the patent applicant and sales of an infringing competing product will have to stop.

Many competitors may think twice about investing time and money in a product for which there is a good chance sales will have to be halted at some unpredictable time in the relatively near future.

August 31, 2018