What Exactly Does “Patent Pending” Mean Anyway?

What does it mean to be patent pending? Think of standing in a very long line to purchase a ticket to see a movie. Only this line will take you about a year to get to the counter. Once you get there, you will be able to pony up the price of admission. And afterwards you make your way to the theater and sit through the trailers patiently waiting for the movie to begin. Only these trailers can take 2-3 years or longer. On top of that, there is no guarantee that you will even like the movie.

Behold, the patent process. Working backwards, the term patent pending means that your rights begin from the day you place your patent application in the mail. And from that date forward, any competitor who makes, uses, or sells a competing product which infringes the claims of your patent will be liable to you for either: the amount of profit he makes, the amount of money you lose, a reasonable licensing fee the judge deems fair, and other factors. This holds true, amazingly, even despite the fact that an Examiner at the USPTO has even laid eyes on your patent application. This remains true even though your patent has not been granted. So now you ask: how?

Damages for patent infringement are retroactive back to the filing date of the original patent application. However, this is all contingent upon one small detail: your patent application must be approved. As a result, you cannot file a lawsuit against anyone until you have an official patent in hand. If your patent application is rejected, it is snake eyes.

As such, you should know that the term patent pending does not mean that you have instant rights from the time you file your patent application. At best, you have prospective rights in the event that your application is granted. And if your application is granted, your rights are retroactive to the filing date, and any infringement in the time between the issuance of your patent and the filing date is prospectively within your reach.

Los Angeles patent attorney.
Los Angeles business attorney.
My name is Andrew Y. Schroeder, Esq., US Patent Attorney based in Los Angeles. Licensed to practice before the United States Patent & Trademark Office and the State Bar of California.

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