What Does it Mean to be “Patent Pending”?

Patent pending means a patent application has been filed but not yet granted. It puts the public on notice that patent protection may be coming — and it can deter copying.

“Patent pending” means that you have filed a patent application with the USPTO (or internationally) that covers your invention, and that application is currently under review. The patent has not yet been granted — but your application is in the system and being examined.

I help inventors and businesses file patent applications and navigate the patent process from first filing through issuance. If you have questions about whether and how to protect your invention, contact me to discuss your situation.

What Types of Applications Make You “Patent Pending”?

Filing any of the following types of patent applications entitles you to use the “patent pending” designation:

• Provisional patent application — A lower-cost placeholder application that establishes a priority date and gives you 12 months to file a nonprovisional application. It is never examined and never becomes a patent on its own, but it does make you patent pending.
• Nonprovisional (utility) patent application — The standard utility patent application that is examined by the USPTO and, if allowed, issues as a patent.
• Design patent application — Covers the ornamental appearance of a product.
• PCT international application — An international patent application filed under the Patent Cooperation Treaty. Filing a PCT application makes you patent pending in 150+ countries simultaneously.

You do not need to include your patent application’s serial number when marking your product as patent pending. Simply stating “patent pending” or “pat. pending” is sufficient.

What Does Patent Pending Actually Protect?

This is one of the most misunderstood aspects of the patent process. Patent pending status does not give you the right to stop others from copying your invention. Only an issued patent gives you that right.

What patent pending does do:

• Puts competitors on notice — It signals that a patent may be coming and that copying the invention could expose them to liability once the patent issues.
• Deters copying — Many competitors will think twice before investing in a product that could be subject to a patent infringement claim down the road.
• Preserves your rights — Once a patent issues, you may be able to recover damages going back to the date the application was published (18 months after filing), provided the infringer had actual notice of the published application.
• Establishes your priority date — Your filing date establishes your place in line. If someone else files a similar application later, your earlier filing date gives you priority.

What patent pending does not do:

• Give you the right to sue for infringement
• Prevent others from making, using, or selling your invention while the application is pending
• Guarantee that a patent will be granted

How Long Does Patent Pending Last?

The duration of patent pending status depends on the type of application filed and the path of prosecution:

• Provisional application: 12 months. A provisional application expires after 12 months and cannot be extended. You must file a nonprovisional application within that window to maintain patent pending status.
• Nonprovisional utility application: Typically 2–3 years from filing, though it can be longer depending on the complexity of the technology and the volume of applications at the USPTO.
• Design patent application: Typically 1–2 years.

If a patent application is abandoned — either intentionally or by failing to respond to a USPTO office action — patent pending status ends. If a patent issues, the patent pending period ends and full patent protection begins.

Patent Marking: Legal Requirements and False Marking

Marking your product as “patent pending” when no application has been filed is illegal. Under U.S. law, false marking — intentionally marking a product as patent pending or patented when it is not — can result in civil liability. Competitors or members of the public can bring a false marking claim, and the consequences can include financial penalties.

A few practical rules:

• You may use “patent pending” as soon as a patent application is filed
• You must stop using “patent pending” if your application is abandoned
• Once a patent issues, you should update your marking to include the patent number (e.g., “U.S. Patent No. X,XXX,XXX”)
• Failing to mark a patented product can limit the damages you can recover in an infringement lawsuit

Does “Patent Pending” Have Any Commercial Value?

Yes — beyond the legal significance, patent pending status has real practical value in the marketplace:

• Investor and licensing discussions: Having a filed patent application signals that you have taken steps to protect your invention. Investors and potential licensees take this seriously.
• Competitive deterrence: Competitors who see “patent pending” on a product may decide not to invest in copying it, knowing a patent could issue and expose them to liability.
• Product launches: You can bring a product to market while your application is pending without giving up your patent rights — as long as you filed before public disclosure in the U.S. (or before any public disclosure in countries that require absolute novelty).

Frequently Asked Questions

Can I sell my product while it is patent pending?
Yes. Patent pending status does not prevent you from selling or commercializing your invention. In fact, getting your product to market while the application is pending is common and often strategically important.

What happens if someone copies my invention while it is patent pending?
You cannot sue for patent infringement until a patent issues. However, once the patent does issue, you may be able to recover damages going back to the date the application was published, provided the infringer had actual notice of the published application and the issued claims are substantially identical to the published claims.

Does filing a provisional application make me patent pending?
Yes. Filing a provisional patent application immediately makes you patent pending. However, a provisional application is never examined and never becomes a patent on its own. You must file a nonprovisional application within 12 months to keep the process moving.

Can I use “patent pending” on my website and marketing materials?
Yes, as long as a patent application has actually been filed. You can use it on your product, packaging, website, and marketing materials. Just make sure to update your marking once a patent issues.

What if my patent application is rejected?
A rejection (called an office action) from the USPTO is not the end of the process. Most patent applications receive at least one office action. You have the opportunity to respond, argue against the rejection, and amend your claims. I handle office action responses regularly and can help you navigate this process.

How is “patent pending” different from a granted patent?
A granted patent gives you the legal right to exclude others from making, using, selling, or importing your invention. Patent pending status does not give you that right — it simply puts the public on notice that a patent may be coming.

Ready to File?

If you have an invention you want to protect, the first step is getting a patent application filed. I offer flat fee patent services and work with inventors and businesses of all sizes.

Contact me to discuss your invention and get started.