What Does “Patent Pending” Really Mean?

Consider the following scenario: you stumble across a product that is currently popular, and children all over the world have or desire one, but it is only made and distributed by one company. You buy one of the goods for yourself, and as you peel off the box, you see the words “patent pending,” but you trash the packing without more thinking.

Soon after, you notice a chance to satisfy demand by manufacturing and selling the product yourself, and you immediately realize that this was a wise decision, as your money balance has never looked better. Later, when you are enjoying the fruits of your inventiveness, you receive a letter from an attorney requesting that you stop manufacturing and selling the innovation because it infringes on their client’s patent. They also indicate a possible claim for damages for infringing on a granted patent if you continue your infringing activity. You remember reading the words “patent pending” in a cold sweat but still don’t truly understand what those words meant.

Patent Pending

A patent is a type of intellectual property that is issued to the creator of a new invention that is innovative, imaginative, and used in commerce or industry. Once granted, a patent grants the owner the exclusive right to prevent anyone from producing, using, exercising, disposing of, offering to dispose of, or importing the invention covered by the patent in the region where the patent is registered.

Most of us have seen the words “Patent pending” somewhere on a newly launched product or its packaging and may have even jokingly used the term around the braai to refer to your custom-made-ultimate-meat-turning-charcoal-grabbing tool, but it appears that few people truly understand what it means, and many are unsure if it has any legal effect at all.

The dictionary definition of pending is “waiting for a decision or settlement.” As a result, patent-pending refers to a patent application that has been filed but the decision to issue the patent has not yet been made by the relevant patent office.

A patent application simply protects the rights to a patent, and only a granted patent is enforceable against third parties. This finally implies that the words “patent pending” have no legal meaning, but it does not imply that the signal is complete without validity.

The patent application procedures vary by nation, but in general, the patent authority of a certain country or area must assess if the innovation for which the patent is being filed meets the patentability standards of that specific territory. It is completely possible that a currently available product may infringe a patent that was only awarded after the product was made accessible, but which patent was applied for earlier than the date the product was introduced and was therefore pending at the time the (now infringing) product was launched.

As a result, it has been usual to use the phrase “patent pending” to refer to items or packaging for which patent protection has been applied but the award of the patent is still waiting. This is done to inform customers, competitors, and potential infringers that the rights to a patent have been reserved, and it is done to deter potential infringers from spending time, money, and effort in making products during the patent application procedure that may infringe the patent once granted.

It is also critical to do research before releasing a new product to the market, as the product may violate not just a granted patent, but also a patent that is to be issued in the future but is still in the application stage. It is also possible that your product will qualify for patent protection if it meets the patentability standards, but that is a completely separate issue and conversation.

A patent attorney will be able to advise you not only on whether or not your invention is patentable but also on whether or not your product may be infringing on granted patents, which infringement may subject you to costly patent infringement actions and a hefty demand for damages. This is a textbook example of how completing your study ahead of time may not only help you make millions but also shield you from potential responsibility for much more.