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US Patent Pending Overview

Updated:2018-2-1 14:30:45    Source:www.tannet-group.comViews:208

Patent pending or "patent applied for" are legal designations or expressions that can be used in relation to a product or process once a patent application for the product or process has been filed, but prior to the patent being issued or the application abandoned. The marking serves to notify the public, business, or potential infringers who would copy the invention that they may be liable for damages (including back-dated royalties), seizure, and injunction once a patent is issued.

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.

In the United States, according to the United States Patent and Trademark Office, the expression "Patent Pending" as such does not protect an invention until the actual patent is published and/or issued:

"A patentee who makes or sells patented articles, or a person who does so for or under the patentee is required to mark the articles with the word "Patent" and the number of the patent. The penalty for failure to mark is that the patentee may not recover damages from an infringer unless the infringer was duly notified of the infringement and continued to infringe after the notice.

The marking of an article as patented when it is not in fact patented is against the law and subjects the offender to a penalty. Some persons mark articles sold with the terms "Patent Applied For" or "Patent Pending". These phrases have no legal effect, but only give information that an application for patent has been filed in the Patent and Trademark Office. The protection afforded by a patent does not start until the actual grant of the patent. False use of these phrases or their equivalent is prohibited".

After you submit a patent application to the U.S. Patent and Trademark Office (USPTO), your invention is officially “patent pending” and you may use that term when describing the invention to others.  In fact, because of the large backlog of cases at the USPTO, your invention is likely to stay “patent pending” for several years.

If an inventor has a patent pending for an invention and a company begins to use that invention without his permission, the inventor can proceed to get the patent issued and sue the company for patent infringement. Patent damages start to accrue from the date that the application is published 18 months after it is filed. Moreover, the inventor can get triple damages if he can prove the infringement was willful. 

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