I’m sure you’ve seen the words “patent pending” or “patent applied for” on a product or package before. What exactly do these phrases mean? What legal rights are attached to them?
Patentees are generally only entitled to infringement damages once an infringer has notice of the infringement. The patent marking statute permits patentees to provide notice to the public by marking a product or product package that is covered by a patent with the patent number. This is why it is recommended that patentees mark their patented products or product packages with the number.
Patent applicants will often mark products or product packages with the phrase “patent pending” or “patent applied for”. These phrases do not have a legal meaning under US patent law, as they do not indicate that the product is covered by a patent or that someone who copies the product is guilty of patent infringement. The purpose of these phrases is to inform the public that the product is the subject of a patent application that has been filed and is pending in the Patent Office. Although in general a patent application cannot be infringed, the public is informed that a patent may issue in the future that covers that product. In this way, the phrases provide some deterrent effect against infringement. Even if a patent does not issue for the product, it is believed that the patent applicant may deter some parties from copying the product while a patent application is pending, thus providing the applicant with a competitive advantage.
Patent marking is also used as a marketing technique. Many consumers believe that a patented product is a cutting edge product–it must be better or an improvement over previous products. “Patent pending” or “patent applied for” may provide this marketing advantage as well.
US patent law also provides a penalty for falsely marking a product that is not covered by a patent. This also includes marking the phrase “patent pending” or “patent applied for” on a product if an application has not be filed or is not pending in the PTO. False marking with intent to deceive the public can result in a fine of up to $500 for each such offense.
In recent years, there have been a number of cases involving allegations of false marking. Under current law, anyone may bring a lawsuit that alleges that a product is falsely marked. The 111th Congress unsuccessfully attempted to pass legislation that would limit these suits to only those that are directly injured by such marking. Presumably, this would mean only competitors. Stay tuned for Patent Reform bills in the 112th Congress.