The expressions "patent pending
" (sometimes abbreviated by "pat. pend". or "pat. pending") or "patent applied for
" refer to a warning that inventors are entitled to use in reference to their product or process once a patent application
A patent application is a request pending at a patent office for the grant of a patent for the invention described and claimed by that application. An application consists of a description of the invention , together with official forms and correspondence relating to the application...
has been filed, but prior to the patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
being issued or the application abandoned. The marking serves to notify potential infringer
Patent infringement is the commission of a prohibited act with respect to a patented invention without permission from the patent holder. Permission may typically be granted in the form of a license. The definition of patent infringement may vary by jurisdiction, but it typically includes using or...
s who would copy the invention
An invention is a novel composition, device, or process. An invention may be derived from a pre-existing model or idea, or it could be independently conceived, in which case it may be a radical breakthrough. In addition, there is cultural invention, which is an innovative set of useful social...
that they may be liable for damages (including back-dated royalties
Royalties are usage-based payments made by one party to another for the right to ongoing use of an asset, sometimes an intellectual property...
), seizure, and injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
once a patent is issued.
In criminal law, a fraud is an intentional deception made for personal gain or to damage another individual; the related adjective is fraudulent. The specific legal definition varies by legal jurisdiction. Fraud is a crime, and also a civil law violation...
ulent use of the patent pending warning is prohibited by the law of many countries and inventors should be cautious when marking products or methods that may arguably not be covered by any pending patent application. In some jurisdictions, such as the United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, a warning notice should ideally mention the number of the pending application.
In Australia, according to IP Australia
The Australian Patent Office is a division of IP Australia which is an agency of the Australian Department of Innovation, Industry, Science and Research. APO issues patents for inventions. APO was established in 1904 by the Commonwealth of Australia and since 1998 has been located in one building,...
, the term "patent pending" refers to an invention in respect of which a patent application has been filed at the patent office but for which a patent has not necessarily been granted. The marking of an article has a legal effect under Section 123 of the Patents Act 1990 with the result that a defendant is taken to be aware of the existence of patent rights.
In Australia, the preferred marking is "Aust. Pat. App. No. yyyynnnnnn" where "yyyy" is the four-digit year of the application and "nnnnnn" is the six-digit number allocated by the Australian Patent Office.
There are penalties for making a false indication of the existence of patent rights for any invention.
In the United States, according to the United States Patent and Trademark Office
The United States Patent and Trademark Office is an agency in the United States Department of Commerce that issues patents to inventors and businesses for their inventions, and trademark registration for product and intellectual property identification.The USPTO is based in Alexandria, Virginia,...
, the expression "Patent Pending" as such does not protect an invention until the actual patent is published and/or issued:
- "A patentee who makes or sells patented articles, or a person who does so for or under the patentee is required to mark the articles with the word "Patent" and the number of the patent. The penalty for failure to mark is that the patentee may not recover damages from an infringer unless the infringer was duly notified of the infringement and continued to infringe after the notice.
- The marking of an article as patented when it is not in fact patented is against the law and subjects the offender to a penalty. Some persons mark articles sold with the terms "Patent Applied For" or "Patent Pending". These phrases have no legal effect, but only give information that an application for patent has been filed in the Patent and Trademark Office. The protection afforded by a patent does not start until the actual grant of the patent. False use of these phrases or their equivalent is prohibited".
The use of the term "patent pending" or "patent applied for" is permitted so long as a patent application has actually been filed. If these terms are used when no patent application has been filed it is deemed as a deceptive act and a fine of up to $500 may be imposed for every such offense. Under the current interpretation of "offense", each mis-marked article constitutes an offense, which permits theoretical damages in the hundreds of millions of dollars for high-volume consumer goods.