What patent pending means is a product or activity has an open patent application on file with a patent office. Filing an application for patent protection makes an invention “patent pending.” Either filing a provisional, non-provisional, U.S., or international (PCT & Hague) application results in pending status. After preparing and filing an application with the United States Patent and Trademark Office (USPTO), you will get a filing receipt (patent pending notice). The filing receipt will show the patent application number. Inventors often use the filing receipt or the application number as proof the invention is pending until it is published. 

Patent pending, however, does not mean that the actual invention or product will be granted patent protection. In other words, pending does not mean a patent will be allowed and issued; it means only that an application for patent was prepared and filed. Once properly filed, a non-provisional patent application remains pending until allowed or finally rejected.

Inventor Tips: [1] provisional patent applications are not examined, and [2] they are only pending for twelve months. Pending applications are not enforceable; only issued patents are enforceable.

When can You put “Patent Pending” on Your Invention or Product?

Once you have the filing receipt for your invention, you can label your product if you would like. Also, the phrase “patent applied for” is acceptable. You do not have to mark your invention or product, but it would serve to put the public (and competitors) on notice that you have filed for and are seeking patent protection.

What Happens After an Application is Pending?

Pending applications often require further communication with the USPTO and WIPO. While a patent is pending, frequently amendments, new/revised claims, or further explanations are needed. These communications occur during patent application prosecution. Note: new matter may only be added in a new application. If new matter is needed to support claims during prosecution, then an additional application is needed. Thus, incomplete pending applications may require a new application. Carson Patents 5 steps to patent include all patenting services from the initial prior art search through prosecution. Read more about our pre-grant patent services.

How do You get Your Invention Pending?

You really only need to file an application for a patent to be pending for your invention. Either a provisional patent application or a non-provisional application will result in pending status. An invention is patent patenting upon filing any complete patent application that gets a filing receipt. Any U.S. or International (PCT & Hague) and utility, plant, or design application filed for your invention makes it pending.

What is the Difference Between Provisional and Non-Provisional Applications?

The difference between provisonal and non-provisional patent applications is in the claims. Both kinds, provisional and non-provisional applications, require the specification and usually drawings. However, only the non-provisional requires claims. The provisional is a temporary placeholder for a later non-provisional application.

The specification and drawings must be complete with either a provisional or non-provisional application. It is important to note that a provisional application must support the claims of the later non-provisional application without needing to add new matter. Therefore, a later non-provisional cannot add new matter and maintain a priority claim to the provisional application’s filing date. To add new matter, a continuation in part application or a new application is required.

Provisional Patent Application vs. Non-Provisional Application Costs

There are reasons for filing the provisional (a.k.a. placeholder) application. There are also reasons to skip filing the provisional and go straight to filing the non-provisional regular patent application. A provisional application can be less expensive to write and file. A provisional application is less expensive is because there are no claims included. Writing and filing a non-provisional patent application is frequently less expensive overall than starting with a provisional application. How much a patent costs and whether or not to start with filing a provisional or non-provisional patent application depends on several factors.

PPA – Provisional Patent Applications – Utility Inventions Only

A PPA is a temporary place holder to get a filing date for an invention that only lasts for a year. A provisional patent application allows you to file an application without formal patent claim(s), oath/declaration, or any information disclosure (prior art) statement. Provisional applications are not examined and therefore do not require claims. Only a utility patent application can be provisional. A design patent application must be non-provisional.

The provisional application is only pending for one year. Within 12 months after the filing of a provisional application, a non-provisional application must be filed. Read more about provisional patent applications.

Regular – Non-Provisional Patent Applications – All Inventions

A non-provisional patent application is a regular patent application. Filing a non-provisional patent application requires the specification and drawings just like the provisional. Importantly, the regular patent application also requires the formal patent claim(s), oath/declaration, and an information disclosure (prior art) statement. 

The regular (non-provisional) patent application requires six things to be complete. The six things needed for filing a non-provisional patent application are the [1] specification, [2] claim(s), [3] drawing(s) (when required), [4] fee, [5] oath, and [6] a translation if not in English.

How Does a Pending Application Become a Patent?

A regular (non-provisional) patent application changes from pending to patent when three things happen. The three things needed to change from pending to patent: [1] you are first to file, [2] you receive a notice of allowance, and [3] you pay the issue fee. Then the patent pending status becomes a patent. Importantly, provisional patent applications cannot become a patent. Provisional patent applications are only pending placeholders for 12 months, and must be replaced with a non-provisional patent application or become abandoned. We follow our 5 steps to patent when working with inventors seeking patent protection for their inventions.

Patent Attorney help with our 5 Steps to Patent

Inventor Tip: Provisional applications do not have claims and cannot become a patent. Only a non-provisional application can become a patent. Patent protection is based on the claims of the patent and can be very valuable. 

Carson Patents®

What Does Patent Protection Mean?

Patent protection is the right to control the making, using, and selling of your invention for the duration of the patent in the country where it was issued. In the U.S. and generally, utility patents are valid for 20 years from the filing date, and design patents are valid for 15 years from the date of issue. Patents are issued and enforced by each country or region independent of the other countries of the world.

Patents are Country Specific Protection

Countries issue their own patents. A patent is only enforceable in the country where issued. U.S. patents protect the right to control the making, using, and selling in the United States. The international applications (PCT/Hague) seek patent protection in other countries and the United States. An international patent application (PCT/Hague) has two stages. The international application is the initial stage. The national stage application is the second stage. A separate application is required in each country where patent protection is sought.

4 Advantages of Granted Patents vs. Patent Pending Products

  1. A Patent Pending Application is not yet the Right to Control: A granted patent is the actual legal right to control the making, using, and selling of the product or process for the term of the patent; whereas a pending patent application is not yet the right to control. 
  2. Stopping Infringement is Easier with a Granted Patent: Competitors are not generally very afraid of pending patent applications. Stopping infringers with a granted patent is vastly easier and less expensive than trying to do the same with a pending patent application.
  3. You can get a Licensing Deal with a Granted Patent: You are not likely to get a licensing deal with only a pending patent application, but you can get a licensing deal with a granted patent. 
  4. Granted Patents have Determinable Asset Valuation: Pending provisional applications are mere placeholders having the value of staking a claim to a date. For pending non-provisional applications, active prosecution is too uncertain until notice of allowance unless it is a divisional or continuation in part from a granted patent. 
Memoji of Greg Carson Patent Attorney

Inventor Tip: When looking for expert patenting services help, only a patent attorney or patent agent can prosecute patents for you.

About The Author