Historically, product marketers heavily use the term “patent pending” on many products, as consumers often desire purchasing the latest and greatest technology as a successful selling technique in business today. Some but not all products will say “Patent Pending” or “Registered US Patent No. XX,XXX,XXX” which is technically referred to as “marking” where it is generally found in the law books as 35 U.S.C. §287.
Short answer: In the strictest legal sense, “patent pending” generally warns consumers and potential competitors that the market product has filed for a US patent application that is currently being reviewed for approval by the government. Contrastingly, marking of a product with the following words on it “Registered US Patent No. XX,XXX,XXX” occurs only when the U.S. government approves of a patent application the issued patent number is assigned by the Patent Office a U.S. Patent Number and a date of issuance – which is the first date that the patent is in actual legal effect and the owner can start suing competitive patent infringers.
Medium answer: Ideally “Patent Pending” on a typical Silicon Valley pitch deck is good enough as the moment a provisional United States Patent Application is filed in the federal government, namely, the United States Patent & Trademark Office, gives all interested parties fair warning that a U.S. patent for an idea(s) has been filed and is currently under review by the US government. Depending on the technology, filing for a patent is a box that entrepreneurs check and that investors eventually look for as the company scales in size. In my experience, Silicon Valley is often an exception where a few rounds of funding have passed before a patent is applied for -if at all- as the circumstances are often complex. In software tech, moving to market and scaling quickly are often perceived as of greater importance in some tech industries.
In the real world, however, such messages on a product may not always accurately give the reader a precise idea of what is actually patented or if the application process for a patent is no longer pending. Various scenarios can occur behind the scenes. Some common examples of inaccurate patent marking should be considered as follows:
- At times the entire product may not be protected by a patent with the words “Reg. Pat. No. XX,XXX,XXX” but only components or perhaps methods from using the product are actually legally enforced by a patent that is marked on the product.;
- often manufactures print products in batches as they are manufactured, it is likely that by the time the product is received by the consumer the message “patent pending” is not longer the case where the application was either approved, rejected or abandoned or “Registered Patent No. XX,XXX,XXX” is not longer in legal effect, namely become expired or “off-patent”;
- because patent marking is one effective warning to would be competitors, there are some instances where competitors falsely patent mark their products to indicate a pending or issued patent application; and
- businesses may be reluctant or not diligent about removing the legal patent marking of “patent pending” or “Reg. US. Patent No. XX, XXX,XXX” on the actual product for years and years after activity with the US Patent Office in that there may be greater marketing value that generates tangible revenue than removing such patent marking as a legal obligation.
Long answer: Recent law has allowed manufacturers to keep the most accurate accounting of the legal status of their “patents pending” or “registered patents no.s. XX,XXX,XXX” on a website to satisfy the legal requirements for patent marking as opposed to solely labeling a product in a practice called “online or virtual patent marking” under 35 U.S.C. §287(a). Notably, for false marking of patents on products, 35 U.S.C. §292 imposes a fine on the patent holder of $500 for every product falsely marked. Furthermore, only competitors who can prove they have suffered economic damages may sue for fines under the recently revised, 35 U.S.C. §292.