Patent Pending Do You Have Enforcement Rights?
“Patent Pending” Status: What it Means and How to Protect Your Invention
When you reach “patent pending” status, you’ve achieved an important milestone on your journey as an inventor. This designation means you’ve taken the first formal step in securing your invention by filing with the United States Patent and Trademark Office (USPTO). But what does patent pending really mean, and how protected are you? Here, we break down the realities of being “patent pending” and outline strategic steps you can take to prepare for potential infringers while positioning your invention for market success.
1. Understanding “Patent Pending” Status
The U.S. operates on a first-to-file system, meaning the first individual to file a patent application has priority—not necessarily the first to invent. Once your application is submitted, your invention is officially considered “patent pending.” This status shows the world that you’re serious about protecting your invention, but it doesn’t yet grant legal protection. The power to prevent others from making, using, or selling your invention will come only after the patent is issued.
For a deeper dive into the patent application process and the importance of filing first, visit Bold Patents’ guide to patent applications.
2. Am I Legally Protected While Patent Pending?
In a word: not yet. Although “patent pending” indicates you’re on the path to securing legal protection, you cannot enforce any rights against infringers until the patent is officially granted. This means if someone begins producing or selling your invention during this period, there’s no federal enforcement mechanism to stop them until you have an issued patent.
However, this period is valuable for assessing market demand and planning strategic steps to enforce your rights in the future. For a more comprehensive understanding of your rights as an inventor, check out our Inventor’s Guide to Patent Protection.
3. Mark Your Product as “Patent Pending”
To position yourself against potential infringers, be sure to mark your product as “patent pending” wherever possible. For physical products, use a visible, permanent marking—such as an engraving or stamp—clearly stating “patent pending.” This label puts others on notice that you’re seeking patent protection, and it can serve as evidence if future infringement occurs after the patent is issued. Proper marking is also an essential step to maximizing your potential damages in the event of a lawsuit.
For more about ensuring your product is correctly marked, visit Bold Patents’ product marking guidelines.
4. Leveraging Digital Marking for Non-Physical Products
If your invention is a digital product or service, display the “patent pending” status prominently on your website, app, or sales page. This not only notifies customers but also potential competitors about your patent intentions, which can help deter infringement. Digital marking is increasingly important as more inventors protect software and other non-tangible innovations.
For more advice on digital protection strategies, explore our software patent resources.
5. Issuing a Notice Letter to Potential Infringers
If you notice a copycat product while still in the patent pending phase, consider working with your patent attorney to send a notice letter to the infringing party. This letter, typically drafted by your attorney, alerts the infringer to your patent application and conveys your intent to protect your rights vigorously. It often serves as a deterrent, giving them a choice to negotiate a licensing agreement, cease production, or risk a lawsuit if the patent is granted.
Takeaway Tips: Navigating Patent Pending Status
A Silver Lining: Patent Pending May Attract Market Interest
The presence of an infringer isn’t always a negative signal. In fact, if another company finds value in your invention enough to market it, this often suggests there’s a healthy consumer demand for your product. Some inventors even leverage this interest as an opportunity to collaborate with established companies that can help bring their invention to a wider audience.
To help navigate these early commercialization steps, consider Bold Patents’ commercialization toolkit, where we provide strategies and resources to evaluate your market potential.
Moving Forward with Confidence
Navigating the patent pending phase can be complex, but each step builds a stronger foundation for your invention’s market success. From product marking to issuing notice letters, each action signals to the world that your invention is unique and protected.
Ready to Take the Next Step?
At Bold Patents, we’re committed to helping inventors like you make the most of this critical patent pending phase. For a personalized strategy session and to explore the full range of patent protection options available to you, book a free discovery call with one of our patent attorneys today.