Patent Pending, shedding light on the confusion.
By: sbbarca | Posted: 21st August 2009
The term patent pending comes with no guarantees. In some ways those rights are instant, yet in other ways they are conditional. And in some ways, those rights are retroactive back to the filing date. And, most importantly, you cannot file a lawsuit until your patent application is approved. Confused? Read on.
The concept of patent pending means that your rights begin from the day you file your patent application. From that day on, any person who makes, uses, or sells a competing product which infringes the claims of your patent will be liable to you for damages. Believe it or not, this is true even if an Examiner at the USPTO has never laid eyes on your patent application. How can this be?
Patent infringement damages are retroactive back to the filing date of the original provisional or non-provisional patent application. Now, here is the tricky part: your patent application must be accepted. Consequently, you cannot file a lawsuit until you have an official patent.
For these reasons, you should know that the term patent pending does not give you instant rights from the time you file your patent application. Now, if you are lucky you may have prospective rights in the event that your application is granted. Upon acceptance of your application by the USPTO, your rights are retroactive to the filing date, and any infringing goods or services in the time between the granting of your patent patent application and the filing date is conditionally at your reach.
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