After you file a patent application, you can now mark your inventive product or service as patent pending. But, what are the pros and cons of doing so? Plus, how should you label your product or service as patent pending?
Do you have to label your inventive product or service as patent pending?
Patent law does not require you to label your product or service as patent pending after filing the patent application. You don’t gain any legal benefit from labeling your product or service as patent pending to let others know about the filing of your patent application. For example, you don’t get to ask for more damages. You don’t get to sue anyone.
However, there are marketing and anticompetitive benefits to labeling your product or service as patent pending.
Pros of marking your inventive product or service as patent pending
The first benefit is that you can market your product as patent pending. Many laypeople and consumers believe that when they see “patent pending,” the product is unique and that others can’t sell the same product. This belief is erroneous but nonetheless, it is what many people believe. When a patent application is filed, the invention or product is patent pending and you can advertise your product as patent pending. To find out more about what inventors and competitors can do when they encounter a patent pending product, click “Patent Pending: What the inventor and competition need to know about each other?”
The second benefit of marking or labeling your inventive product or service as patent pending is that others may be persuaded not to copy your product or service. PATENT PENDING does not allow you to sue others for patent infringement. For example, in my practice, when clients or prospective clients ask me what they ought to do when they are copying a patent-pending product, I let them know that if it is just patent pending, they can copy the product.
Nevertheless, a layperson may not know any better. They may decide to not compete with your patent pending product.
Cons of marking your inventive product or service as patent pending
There is no downside in my opinion to marking the product as patent pending. The only precaution you need to take is to label the product or service with the words PATENT PENDING. Do not identify your serial number. Otherwise, your competitors may file a protest with the patent office to try to persuade them to reject your application for a patent.
The benefit of patent marking
The primary benefit of patent marking is to provide constructive notice to the world of your patent. While your patent application is pending, constructive notice to the world that your patent application is merely pending doesn’t provide the inventor or the owner of the patent application with any right to sue anyone else.
Nevertheless, if you set up your patent marking system properly, it will make things a lot easier if and when you ultimately do get your patent granted.
How should you mark the product as patent pending?
You have two different ways to mark your product as patent pending. You can physically label your product with the words PATENT PENDING. However, when your patent is finally granted, you have to change your label so that the patent number is now on the product. With production and distribution, this may be difficult to get done.
However, there is a simpler way to set yourself up for it which is called virtual patent marking. You can learn more about virtual patent marking with my article on Patent Marking.
To patent mark your product, you can label your product with Pat.: <insert webpage address>. The webpage address is an address that you control that anyone can access without having to pay to access it. The webpage will identify your product and whether it is PATENT PENDING. If it is patented, then you could update the webpage with the patent number. There is no need to get your manufacturer involved.
Will competitors be able to see your patent application if you do label your product as patent pending?
Competitors will not be able to view your patent application if you identify your product or service as patent pending. Patent applications remain secret for 18 months from the earliest filing date.