Proper Use of the Patent Pending Status
- There is only one instance in which an inventor may mark his new invention with the words "patent pending," and that is when he has submitted a regular patent application or provisional application to the PTO. This essentially announces to anyone who buys your invention (if you are selling it) that you expect it to eventually be fully patented. Unfortunately, the use of the words "patent pending" offer you no protection against infringement. If another inventor makes and sells a device uncannily similar to yours, you don't have the right of exclusion to enjoin that other inventor from making or selling it. Patent protection begins once the PTO issues your patent, and no sooner. However, if your invention includes a trademark that you have registered with the PTO, you may have recourse. Protection against trademark infringement begins at the time you begin using your mark in the consumer market.
- Patenting an invention is a costly, lengthy endeavor; simply submitting an initial application for a utility patent costs $330 plus search and examination fees, and this does not take into account the fees that you may pay a patent attorney or patent agent to draft your application. But don't be tempted to put "patent pending" on your invention unless you really have applied for a patent, as this is unlawful. Under 35 U.S.C. 292, anyone who uses the term "patent pending" without actually having an application in process may be subject to a $500 fine for every offense. If someone sues you for deceptive marketing, one half of the fines collected go to that person and the other half goes to the federal government.
- Once your patent is approved by the PTO, you can give notice that your invention is fully patented by using the word "patent" (or "pat.") along with your patent number. You don't have to do this, but if you don't, you cannot recover damages should someone infringe on your invention, as you have failed to provide adequate notice. Additionally, if someone infringed on your invention when it bore a "patent pending" mark and the infringer is made aware, you can still sue after your patent is issued and collect damages for the period starting with the date your patent bore notification.