Navigating patent law is among the most frustrating parts of being an inventor. Many great ideas make it from conception to reality, only to be dragged down by the patent process. Despite the logistical roadblocks involved in seeking a patent, patent protection is necessary to safeguard your idea as your own.

In addition to the hurdles that come with attempting to secure a patent, one of the most challenging elements in patent law is the difference between patented and patent pending. Is a pending patent just as good as an issued patent, and what does it mean for your product?

The Difference Between Patent Pending and Patented

There is one notable distinction between patent pending and patented: the presence of a patent. The phrase “patent pending” indicates that a patent request has been filed with the United States Patent and Trademark Office but has not yet been issued. At this stage, other inventors or companies can theoretically copy your ideas, but may be subject to an infringement lawsuit should your patent application be accepted.

It is important to note that a product that is patent pending may not actually receive a patent; the U.S. rejects roughly 40% of patent applications overall annually, and close to 90% of initial applications.

Professional Assistance or DIY

In essence, there are two ways to approach the process of securing a patent. You can either file an application by yourself or work with a patent attorney to have papers professionally prepared.

Filing for a patent by yourself is the cheapest way; there are no attorney fees involved and you can handle the process at your leisure. There are many books and guides related to filing patents that can help guide you, providing the information you need to make sure every step is handled properly. For new inventors, however, this method can often lead to multiple rejections and a significant time commitment, a problem that may delay a move to market for months or even years. A patent attorney has extensive experience processing patents, giving you the credibility to get it right the first time. Costs associated with professional patent preparation may be steep, but a good attorney is frequently worth the investment.

How Should an Invention Be Marked?

In order to avoid imitators, all products, both patent pending and patented, should be marked accordingly. Products that are not properly marked may not be protected under a patent in case of a lawsuit, adding a distinct level of risk to your operations.

The 2011 Leahy-Smith America Invents Act seeks to clarify how to effectively mark patented and patent pending products. Pending products should be labeled clearly, with language like “Patent Pending,” “U.S. Patent Pending,” “U.S. Pat. Pend.” or a virtual patent pending notice on a company website. While there is no legal necessity to mark an invention as patent pending like there is when an item is patented, doing so can prevent problems with infringement in the future should your patent application be accepted. It is a crime to mark an article as patent pending when a patent application has not yet been filed.

Can I Market My Invention While Patent Pending?

Yes, products can be marketed while a patent is pending. If every inventor in the U.S. had to wait until a patent went through, there would be serious implications to production cycles and time to market. Most patents take between one to three years to be accepted, putting a product’s patent eligibility up in the air for a very long time.

When marketing a product that is patent pending, it is important to make this point very clear. There is no certainty the government will accept your patent application, but if your product is issued a patent, early notification may help keep potential imitators at bay. Should your patent be rejected, immediately cease referring to your product as patent pending until a revised application has been filed.

Am I Protected While Patent Pending?

Going to market with a patent pending product does have certain risks. Unlike when a patent is issued, a patent pending product is not technically protected by anything until a patent application is accepted.

A pending patent may not offer actual protection, but getting the ball rolling does offer some perceived protection. Most companies will hesitate to begin production and invest thousands into research and development on a product that may be disallowed by a future patent.

How Do I Stop Copies While My Patent Is Pending?

When a patent is issued, a company can sue for infringement when patent terms are violated, but there is no such protection for a pending patent. Until your patent application is approved, other inventors are free to duplicate your product as they wish, although this activity is generally not in a rival’s best interest.

If someone is copying your design before your patent is issued, you are free to issue a notice stating that you have a patent pending that covers the product in question and that all production should be halted. Alternately, you may also request a meeting to discuss licensing possibilities. However, there is no legal requirement that a copier respond to your letter, as he or she is free to continue copying your design until a patent is issued.

Inventors with a patent pending who are facing potential imitators may request a prioritized examination in order to expedite the patent process, generally by paying a large sum of money. If granted, this action will ensure a final disposition within 12 months, reducing the timeline in order for you to take action against imitators.

Filing for a patent is a great first step in protecting your invention, but the buck doesn’t stop there. In order to truly benefit from U.S. patent protection, a patent must actually be issued, not simply applied for. By understanding the difference between patented and patent pending as well as knowing the laws and protections afforded under each circumstance, you are in the best possible position to do right by your product. While the patent process is generally long and arduous, the end result is much desired, offering you proprietary use for your hard-sough efforts.