On "Patent Pending" and other Patent Application Status Language

A hearty thanks to all of you who both happened to see and participated in my poll regarding use of language describing patent application status!

As promised, once the poll closed, I doubled back to explain each answer with the hopes that at least some of you who aren't IP professional will be better able to discuss and discern your IP and the possible IP of others, respectively.

Best answer is D: "I sure hope I get a patent!"

And here is why:

Answer A "I filed/have a patent" - (demonstrates inexperience / a misrepresentation that might lead to legal liability):

From the very moment you have filed a patent application and received an application serial number until the patent application either issues as a patent or goes abandoned, you can claim "Patent Pending." This is the case for design patent applications, provisional utility patent applications (which don't get examined), and nonprovisional utility patent applications.

One problem with this answer is that you don't "file a patent," you "file a patent application" that may later be allowed and issue as a patent. So, by saying you filed a patent, you may be telegraphing to more experienced IP folks that you don't have full grasp of the process or your rights.

Another problem with this answer is that claiming you "have a patent" is a pretty big misrepresentation. According to the hypothetical question presented, your patent application is still pending and has not yet been issued as a patent. Claiming "you have a patent" when you don't could lead to legal liability in the realms of antitrust, false advertising, and more.

It is important to choose your words carefully.

Answer B "My invention is patented." - (is loose language even if it were true / is a misrepresentation that might lead to legal liability):

Pretend for a moment you actually do have an issued patent related to your invention...which is not the fact scenario of the question presented. Even though you have a patent, stating that "my invention is patented" is not specific to the actual protection provided in the claims section of your issued patent. The patent may only protect a very specific feature of your invention. Your patent application may comprise many inventions and your issued patent may only offer protection for a subset of those inventions. To communicate well, you'd need to explain which features of your invention are protected and the scope of the protection.

The major problem with this answer is that claiming your invention is patented simply is not true. Your invention is simply described in a patent application that remains pending. Like Answer A, Answer B could lead to legal liability in the realms of antitrust, false advertising, and more.

Answer C "U can't, I filed a patent app." - (ambiguous question/answer combination)

This answer causes a bit of ambiguity. The original intent of the question/answer was to represent a situation where you have a pending patent application and are telling someone they can't make, use or sell your invention because you believe they are infringing your patent application. Well, there is no ability to prevent others from practicing your invention UNTIL you have an issued patent...so the original intent was this answer was incorrect.

However, I suspect some others keyed in on another interpretation of the question and answered thinking "U can't get protection for this invention, I already filed a patent application." This could be the case. The United States patent system is a "First Inventor To File" system. This means there is a bit of a race to the USPTO amongst inventors who independently invent the same thing. The system rewards those who file rather those who invent and keep it secret/shelved. This reinforces the public policy purpose of the patent system to tease innovation into the public and move everyone forward technologically while rewarding the patentee with some exclusivity for a defined period.

Answer D "I sure hope I get a patent!" (correct and unambiguous answer)

Filing a patent application offers no guarantees. One thing is for sure though, if you never file a patent application you will never get a patent.

Once you've filed a patent application, be sure to consult your IP attorney regarding whether and how to talk about the status of your patent application.

Also, know when to pull the plug. Sometimes the patent prosecution process can become too costly and the scope of protection available in view of the prior art can render any patent that is likely to "useless" from an IP battle perspective.

However, consider that from a business impact or market perspective, even a "useless" issued patent with narrow scope that is easily worked around can have value since not everyone understands the way it all works.

Sometimes rightfully marking a product or service as patented is enough to push away lazy or unsophisticated would-be competitors.

If you have further questions, feel free to DM me.

73 (ham radio speak for best regards)