When an innovative individual or business files a provisional or non-provisional patent application with the United States Patent and Trademark Office (USPTO), the invention in question is granted “patent pending” status. This designation informs the public that a patent has been filed and is awaiting approval. While “patent pending” status offers certain protections and serves as a warning to potential infringers, it does not afford inventors the same rights as a full patent.
The term “patent pending” refers to the period (and related protections) after a patent application has been filed but before the patent has been issued. During this period, the USPTO examines a patent application to determine if the invention qualifies for patent protection. Patent pending status can last months or even years, depending on the complexity of the application and the USPTO’s backlog.
The primary purpose of marking an invention as “patent pending” is to notify competitors, potential investors and the public that the invention may soon be patented. It acts as a deterrent to would-be infringers by signaling that patent protection could be forthcoming, but it does not yet provide the inventor with the legal right to enforce exclusivity.
Seeking justice in the wake of infringement
In general, violations or infringement of a pending patent are not legally actionable until the patent is officially granted. During the patent pending period, inventors do not yet have enforceable rights. This means that if someone copies or uses the invention while the application is pending, the inventor cannot sue for infringement during that time.
But, in some cases, once a patent is granted, an inventor may be able to seek retroactive damages for infringement that occurred during the patent pending period. A patent holder may be able to collect damages from the date that their application was published, provided that the infringer had actual notice of the pending application.
While violations of a “patent pending” invention are not ordinarily legally actionable until a patent is granted, there can be great value in seeking damages once patent protection of an invention has been finalized. It is possible to seek justice in these scenarios, justice may “simply” be a little delayed.
