If you own a patented invention or are about to launch a new technology onto the market and have applied for a patent on it you probably want to let consumers know about it. You can do so by putting either ‘patented’ or ‘patent pending’ on your packaging. But are you allowed to just simply go ahead and do that? What are the restrictions? And what are the advantages? I would like to explain this to you in this blog.
What exactly does 'patent pending' mean?
Let's start with 'patent pending'. It means that you have filed a patent application but the patent has not yet been granted. In other words that you have taken the first step towards protecting your product but are still not quite there yet. The application still has to be examined by the patent office and this process can take quite some time. So you are not yet protected.
What does 'patented' mean?
You are only allowed to use the term 'patented' on your packaging or product once your patent has actually been approved and granted. From then on you are fully protected and others are not allowed to simply copy your product. Among other things, a patent gives you the exclusive right to make, sell or license your invention.
Marketing advantage
Using these terms on your product can have several advantages especially when it comes to marketing. By stating 'patent pending' on your product or that a patent has already been granted you show that your product is innovative and of a high quality. This can help influence customers to choose your product. Innovation inspires confidence and consumers are often willing to pay more for products that are novel and different.
This marketing advantage is particularly important in competitive markets, where the difference between success and failure may depend on how unique and innovative your product is perceived to be.
Patent pending as a warning
If your invention has not yet been patented, you are not protected from competitors who want to copy your product. However, if you have filed a patent application, you are allowed to put 'patent pending' on your product. This can act as a warning to your competitors and tells them that you have filed a patent application and will take legal action if they infringe!
If a competitor nevertheless does infringe, you can send them a written warning. This does not give you any legal power as you have not yet been granted a patent. However, you can use it to raise awareness among your competitors and scare them off.
Once you are granted your patent you can claim retroactive compensation for the use of your invention from the date of publication of your patent application.
Be careful
You are only allowed to use the term 'patent pending' once you have filed your patent application and you cannot use the term 'patented' until the patent has been officially granted. If you do so before then or if you use the term when your patent is no longer active there may be legal consequences. In some countries, such as Germany for example, this is strictly enforced. This may be considered misleading to consumers and could result in hefty fines.
Don't forget to mention your patent number
I recommend that you don't just use the term 'patented' but also include your patent number. This provides clarity and transparency for consumers and competitors alike. In some countries, such as the United States for example, you need to include the patent number in order to be able to claim full damages in the event of an infringement. This is not always the case in Europe but it can help prove that a competitor knowingly committed an infringement and may have an impact on the amount of damages.
If you have developed an invention and would like to know how to protect it with a patent or would like some advice on how to communicate the status of your patent application then please let me know. I can guide you through the entire patent process, from filing an application to protection.
