For many inventors, those two words feel like a suit of armor. They believe they’ve officially locked out the competition and can rest easy. But as a patent agent, I have to be the bearer of some sobering news: "Patent Pending" is not a shield; it’s a "No Trespassing" sign. It warns people, but it doesn't actually stop them from walking onto your lawn.
If you’re relying on your pending status to protect your business, you need to understand the reality of what that status does and doesn’t do.
1. You Cannot Sue for Infringement (Yet)
This is the most common misconception. Inventors often think that the moment they file a provisional or non-provisional application, they can call their lawyer and shut down a copycat.
The Reality: You have zero enforceable rights until the day the USPTO officially grants your patent. You cannot sue for damages, you cannot get an injunction to stop sales, and you cannot force a competitor to stop using your idea while the application is under review—which can take years.
The Strategy: While you can’t sue yet, you can use the pending status to scare off smaller competitors who don't want to risk a future lawsuit once your patent is eventually issued.
2. The "Provisional" False Sense of Security
Many inventors start with a Provisional Patent Application (PPA). It’s cheaper, faster, and allows you to use the term "Patent Pending" for 12 months.
The Reality: A PPA is never examined by the Patent Office. It’s essentially a placeholder. If your PPA is poorly written (see my previous post on the
5 Biggest Mistakes Inventors Make The Strategy: Treat your provisional application with the same technical rigor as a final one. A "quick and dirty" filing provides "quick and dirty" protection.
3. Competitors Can Use the "Gap" to Design Around You
When your non-provisional application is published (usually 18 months after filing), the whole world gets to see exactly what you’re claiming.
The Reality: Smart competitors will look at your pending claims and look for "loopholes." Since your patent isn't active yet, they might use that time to tweak their own designs to ensure they don't infringe on your final patent when it eventually arrives.
The Strategy: This is why "nested" claims are vital. By having a skilled agent draft multiple layers of protection, you make it much harder for competitors to wiggle through the gaps while you wait for approval.
4. The Risk of "False Marking"
Because "Patent Pending" sounds so powerful, some people use it before they’ve even filed, or they keep using it after their application has been rejected or abandoned.
The Reality: This is called false marking, and it’s illegal. In the U.S., you can be fined up to $500 per offense (which can be interpreted as per product sold) for falsely claiming patent status.
The Strategy: Only use the term once you have a confirmed filing receipt from the USPTO, and remove it immediately if you decide not to pursue the patent further.
So, Is "Patent Pending" Useless?
Not at all. It is a vital tool for:
Attracting Investors: They want to see that you’ve started the process.
Marketing: It signals innovation to your customers.
Provisional Rights: In some cases, if your patent is eventually granted, you can collect "reasonable royalties" from infringers for the period after your application was published but before it was granted—but only if they had actual notice of the application and your issued claims are "substantially identical" to your pending ones.
The Bottom Line
"Patent Pending" is a placeholder in a long-game strategy. It buys you time, but it doesn't provide an immediate legal hammer. To turn that "Pending" into a "Protected," you need a robust filing strategy that anticipates the moves your competitors will make during the wait.
Are you currently in the "Pending" phase and worried about a copycat? Let's talk about how to strengthen your position and prepare for the day your patent officially issues. I offer a free 15 minute initial consultation, here.
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