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PATENT PENDING — what it is and how to obtain

By: Sharon Adams

A product may be labeled as “patent pending” once a patent application has been filed, and until a patent is issued or the application is abandoned.  This includes all types of patent applications, including provisional applications.  Filing the application is all that is required. patentpending

If a patent application is abandoned for any reason, the product may not be labeled as “patent pending” and may be subject to a fine for improper use of the phrase.  Likewise, “patent pending” is no longer appropriate if the patent application results in an issued patent; instead the product should be labeled as patented and provide the unique patent number.

An invention that’s labeled as “patent pending” has provisional rights (provisional rights are distinct from, and not to be confused with, provisional applications, mentioned above).  These provisional rights include the right to send a cease & desist letter to potential infringers.  However, there is no right to collect damages for infringement unless and until a patent actually issues.

Four Advantages to Patent Pending:

  1. It may be the highest level of patent protection you ever get. Statistics from the U.S. Patent & Trademark Office indicate that roughly 50% of all patent applications result in an issued patent.  That includes all the people who absolutely believed that their invention was completely unique and patentable.  Therefore, the only time a product may ever have the word “patent” on the product (as in “patent pending”) is during the pendency of the patent application.
  2. It may deter some infringers. Many people are unsure exactly what “patent pending” means, and may assume that the product is patented, or is about to be patented.
  3. It provides notice to competitors that there is a pending application covering the product. In today’s market environment, with the timeline needed to develop and launch a product, competing businesses may choose to alter business plans, rather than risk developing a product that may infringe an existing product on the shelves that is labeled “patent pending”.
  4. Getting your product to the market with the label “patent pending” allows you to market get actual sales of the product. This is good for your bottom line!  In addition, “commercial success” may be used as evidence to overcome a rejection of the pending application for non-obviousness.

How to Obtain

Simply file a patent application online or contact us at Bay Oak Law for help filing your patent application.

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