This post is part of a series of posts entitled A Guide To Intellectual Property Protection. For a comprehensive list of articles contained in this series, click here.
The words “patent pending” can be placed on an invention once the inventor has filed a patent application. After a patent issues, the patent number should be placed on the invention. Alternatively, the patent applicant can mark its product with a website address and then place the appropriate patent numbers at the website address thereby avoiding expenses associated with updated product labeling each time a new patent issues, and only requiring update of the website.
Failure to mark the product with the patent number can lead to reduced damages when enforcing the patent. Accordingly, marking is strongly encouraged.
There are also laws against improper marking. Therefore, care should be taken to only mark products covered by the patent and to remove the marking when the patent expires.
In some ways, the words “patent pending” can be a more powerful deterrent to a competitor than the actual patent which later issues. When a competitor sees the words “patent pending” on a product, it has no idea what feature or features of the invention are being claimed in the pending patent application. Suppose for example, that the applicant places the words “patent pending” on a vacuum cleaner. The patent application may contain claims directed to a certain type of switch mechanism. However, a competitor would have no way of knowing this until the application publishes or the application issues as a patent in the case of a non-published application. The competitor might think that the applicant’s invention relates to the brush mechanism, the type of motor, or the hose assembly, and therefore, avoid copying any of these features.
Once the application publishes or the patent issues, however, the competitor will be able to obtain a copy of the application or patent almost immediately. It can then determine exactly what the inventor has claimed as the invention. Once the competitor discovers that the application or patent applies only to the switch mechanism, for example, the competitor can freely copy the other features of the vacuum cleaner without worrying about possible infringement. Keep in mind that an inventor cannot prevent “infringement” of his or her invention until a patent issues.
However, provisional rights described above (not to be confused with the provisional patent application) may apply in this situation thereby increasing the risk to the competitor.