According to United States Patent and Trademark Office (USPTO), the term “patent pending” means an inventor has filed a provisional application for a patent. So, when you see the phrase “patent pending” next to a product, it means that the inventor of the product wants to warn potential copycats that he has sought a patent. If the patent is granted, the patent would prevent the copycat from continuing to produce the product.
As an attorney, I know that many inventors would be shocked to learn that the phrase “patent pending” does not protect their invention. Others remain free to copy the invention unless and until the patent has actually been granted. The phrase has remarkably no legal effect in and of itself – you can’t protect your invention simply by posting the words “patent pending.”
Want proof? Here’s what the USPTO has to say: “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 a patent has been filed in the USPTO. The protection afforded by a patent does not start until the actual grant of the patent.”
In other words, even if you affix the words “patent pending” to your invention, it can still be legally copied! This is the case until the patent is granted. Of course, once the patent has been granted, you can pursue copycats in court.
Even though it has little legal weight, an inventor cannot use the term “patent pending” unless they have applied for a patent. The United States Patent and Trademark Office only allows a person to use the term “Patent Pending” if they have filed for a provisional patent. It states unequivocally that “False use of these phrases or their equivalent is prohibited.” So, even though the phrase patent pending doesn’t protect your invention, you can’t use it until you’ve actually filed for a provisional patent.
There is one important caveat: you cannot obtain a patent that is nothing more than an idea, or which does not work. Therefore, you should not affix the phrase “patent pending” to these items, since they cannot be patented. A patent is granted only when the USPTO considers a patent “useful,” which means it serves a “useful purpose. ” Also, the USPTO does not consider an item useful if it does not work. If you apply for a patent for a mousetrap that is incapable of catching mice, the USPTO will not accept your patent.