What Does "Patent Pending" Actually Mean?

"Patent pending" means that a patent application has been filed with a patent office and is awaiting examination or decision. It is a factual statement about a legal status — nothing more and nothing less.

It does not mean a patent has been granted. It does not give you any enforceable rights against infringers. It does not prevent anyone from making, selling, or importing your invention. What it does is put the world on notice that a patent may be coming — and that has real strategic value.

What "Patent Pending" Does

Deters competitors. A competitor who sees "patent pending" on a product knows that a patent may be granted in the future — and that continuing to sell a potentially infringing product could result in damages. Some competitors will choose to wait, design around, or approach you for a licence rather than risk infringement.

Establishes commercial seriousness. "Patent pending" signals to investors, licensees, and partners that you have taken formal steps to protect the invention. It distinguishes a serious product from a concept.

Preserves future damages. In the US, once a patent is granted, the patent holder may be able to collect damages for infringement that occurred during the pending period — but only if the granted claims are substantially identical to the published claims and the infringer had actual notice of the published application.

What "Patent Pending" Does Not Do

It does not give you the right to sue anyone. Only a granted patent creates enforceable rights. During the pending period, you cannot compel a competitor to stop making your invention or pay you royalties.

It does not guarantee a patent will be granted. Many applications are rejected, narrowed, or abandoned during prosecution. "Patent pending" indicates a process in motion — not an outcome.

It does not last forever. If the application is abandoned, rejected without appeal, or the inventor fails to respond to Office Actions, the "patent pending" status ends. At that point, continuing to mark a product as "patent pending" is false marking — a legal violation.

When You Can Use It

You can use "patent pending" (or "pat. pending" or "patent applied for") as soon as a patent application has been filed — whether provisional, non-provisional, PCT, or national. The application must be genuine and currently pending. The status applies to any product, marketing material, packaging, or website associated with the invention described in the application.

Once the patent is granted, you switch to "patented" and include the patent number (or use virtual patent marking with a URL that lists the relevant patents). If the application is abandoned or finally rejected, you must stop using "patent pending" immediately.

False Marking

Using "patent pending" when no application is actually pending — or continuing to use it after the application has been abandoned — is false marking. In the US, false marking can result in penalties of up to $500 per offence under 35 U.S.C. § 292. Other jurisdictions have equivalent provisions.

The intent requirement matters: the false marking must be made with the intent to deceive the public. But the simplest way to avoid the issue is to only use "patent pending" when an application is genuinely pending, and to update your marking promptly when the status changes.

Sources

1. 35 U.S.C. § 287 — Patent Marking — US law governing patent marking and "patent pending" usage
2. 35 U.S.C. § 292 — False Marking — Penalties for falsely marking products as "patent pending"
3. USPTO Patent Basics — Overview of patent application status and pending applications