I was recently approached by someone from a company who asked me questions about a product that had 'patent pending' on it. He wanted to bring a similar product onto the market but was not sure whether that would be a wise move.
I have noticed that entrepreneurs are often not really clear about 'patent pending', which is why I felt it would be a good topic for a Bl&G.
Patent pending: what is it exactly?
The moment you have filed a patent application for an innovation, you can use the term 'patent pending' on the product. It indicates that you have applied for a patent but that the patent has not yet been granted.
Why would you put 'patent pending' on a product?
It shows that you are selling an innovative product. Apparently consumers are more likely to be willing to pay a higher price for the product. You can see it as a marketing tool.
On top of that it will keep the competition at bay. You are showing that a patent application procedure has been started. If copy cats decide to copy the product then this can have financial consequences for them.
So what are my rights? Does 'patent pending' protect my products against infringement?
No, it does not! As the patent has not yet been granted, it is impossible for your competitors to make an infringement. You can nevertheless take steps in this phase to stop copy cats.
What steps can I take during the patent pending phase?
You can send the other party a written warning telling them that you have filed a patent application for the innovation or product in question. The moment the patent is granted, you can call the other party to account for the infringement with retroactive effect. Your competitor will then have to pay you damages.
Patent Pending: indirect protection
Your competitor will need to weigh up the odds of the patent being granted. It is highly likely that this uncertainty will dissuade the other party from bringing a similar innovation onto the market. This way you nevertheless enjoy protection from your 'patent pending'. It could even prove to be a very interesting patent strategy, but more about that next week.