A patent is a type of intellectual property where the inventor seeks protection by filing a patent application. A patent pending refers to the pending claim under the patent application following the instructions of the Patent and Trademark Office (USPTO). Other forms of protected intellectual property include copyrights and trademarks. While the protection for copyrights and trademarks is automatic, one must officially file an application to receive protection under patent law. The process of drafting, filing, and negotiating with the USPTO for securing patent rights and protection is called patent prosecution. The patent protection covers the physical or intellectual invention, as well as the process of the invention. The patent examiner looks into the invention to determine whether the patent law should protect the invention.
There are many different types of patents under U.S. intellectual property law. The main categories of patents are utility patents, design patents, plant patents, and provisional patents. A utility patent refers to the most generic patent, covering all inventions and processes that are useful, novel, and non-obvious (lasts 20 years). A design patent covers ornamental inventions such as graphical user interfaces, icons, and application designs (lasts 15 years). A plant patent covers any asexually reproduced plants, including the cloned plant’s appearance, traits, seeds, etc. (lasts 20 years).
If the inventor would like to enjoy legal protection during the filing process of the patent, then the inventor must seek to obtain a provisional patent. A provisional patent protects the invention for 12 months before the actual acquisition of a full patent. See 35 U.S. Code § 111(b)(5). The protection provided by the provisional patent is similar to that of a regular patent, although the specifics of the protection may differ. The American Inventors Protection Act confers the inventor of provisional rights and protections for the invention under a provisional patent. The inventor must give notice to the third party with a cease-and-desist letter and subsequently obtain a full patent for the invention to get provisional patent protection.
The patent pending label is by no means legal protection from infringement from other users, and the phrase “patent pending” by itself does not carry any legal effect. The designation simply indicates to potential customers and competition that the patent application holder is seeking a patent. The filing of a patent pending could be significant because the filing provides the inventor with a filing date. Historically, federal law gave priority to the inventor who invented the creation. Therefore, even if the inventor did not file first, it did not matter as long as the inventor could prove that they created the invention first. Nevertheless, current federal law prioritizes the first individual to file a patent, so securing a filing date for a patent pending could be crucial. Filing for a patent pending also allows the inventor to begin marketing of the product in the marketplace as long as the inventor pursues the patent status of the invention.
After the inventor receives the patent, others cannot lawfully use the invention without the patent holder's permission. If another person uses the invention unlawfully, the inventor may sue the user with an infringement claim. The phrase patent pending, also known as patent applied for, should not be used unless the inventor has actually filed the patent application. There is a penalty for a false marking of patent pending: See 35 U.S.C. § 292.
See: Intellectual Property cases, Impression Products, Inc. v. Lexmark International, Inc., 581 U.S. (2017), Samsung Electronics Co. v. Apple Inc., 580 U.S. (2016).
[Last updated in January of 2024 by the Wex Definitions Team]