When can I label my product as “patent pending?”

Before creating your concept, you may have dismissed messages on other products that said, “patent pending.” Now that you have your own idea that needs protection, those words seem like they have the potential to add a layer of protection while your patent is processing.

After spending a significant amount of time and money developing your concept, the idea of filing for a patent to protect it can be overwhelming. From start to finish, it can take over a year to get a patent approved. That can be a long time to wait for protection on your product.

Here’s what you should know before adding “patent pending” on your product.

Adding the label

Unfortunately, adding the phrase, patent pending, does not give you the legal protection of a patent. It does, however, warn competitors that you are in the patent process and that they should not attempt to copy your idea.

Keep in mind, that even with a warning and a patent in process, your product still does not have the protection of a patent. If another person or company steals your idea, you will have to wait until your patent is approved to sue for infringement.

What if I haven’t filed for a patent yet?

Even though there is no specific protection that comes with a patent pending warning, there are consequences if you add the label too soon. Adding the pending patent label to a product that does not have a completed application is false marketing and comes with a fine of up to $500 per case.

Once you complete your application and pay the filing fee, you may begin labeling your product as “patent pending.”

Do I have to?

There is no legal requirement to add the patent pending phrase to your product. The phrase merely serves as a warning to those who would try to steal or copy your idea.

While an infringement suit would have to wait until you receive approval for your patent application, the “patent pending” is still a serious warning to competitors. The warning would, hopefully, deter a copycat and save you from having to file an infringement claim.

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