When an inventor or company files a patent application — whether provisional or non-provisional — they earn the right to mark their product or invention as 'patent pending.' This designation alerts the public and competitors that a patent application is in progress and that the applicant may eventually obtain enforceable patent rights. The patent pending period can last from one to several years, depending on the patent office and technology area. In the United States, the average time from filing to grant is about 23 months, though complex applications in areas like biotechnology or software can take significantly longer. While patent pending status does not give the applicant enforceable patent rights, it provides an important strategic advantage. Once a patent is granted, the holder may be entitled to recover reasonable royalties from infringers dating back to the publication of the application, provided certain conditions are met. This retroactive potential creates a strong deterrent effect.
Why It Matters
Patent pending status is a critical window in IP strategy. It signals to competitors that patent rights are being pursued, potentially deterring them from copying your invention. It also establishes a priority date, which is essential in first-to-file jurisdictions. However, it is not a guarantee of protection — many applications are ultimately rejected or narrowed during prosecution.
How This Connects to IP Protection
immut provides immediate, verifiable proof that your invention existed at a specific date — even before you file a patent application. This blockchain-timestamped evidence can support your patent pending period by establishing the earliest possible record of your innovation. If patent prosecution takes years, having an immut timestamp from day one strengthens your position.
Common Mistakes to Avoid
Patent pending means the invention is protected: Patent pending is a status, not a right. You cannot enforce patent rights or sue for infringement while the application is pending. Protection only begins when the patent is actually granted.
Falsely marking something as patent pending has no consequences: In many jurisdictions, falsely marking a product as 'patent pending' when no application has been filed is illegal. In the US, it can result in fines of up to $500 per offence under 35 U.S.C. 292.
Patent pending lasts a fixed amount of time: The duration varies widely based on the patent office workload, technology complexity, and whether the applicant responds promptly to office actions. It can range from under a year to over five years.
Frequently Asked Questions
Can I sell a product that is patent pending?
Yes. You can manufacture, sell, and market products while your patent application is pending. In fact, many companies launch products during the patent pending phase to establish market presence while awaiting grant.
Does patent pending deter competitors?
It can. Competitors know that if the patent is granted, the holder may seek damages retroactively. However, sophisticated competitors may review the published application and assess the likelihood of grant before deciding whether to proceed with competing products.
What is the difference between patent pending and patented?
Patent pending means the application is filed but not granted — no enforceable rights exist yet. Patented means the patent has been granted and the holder can enforce their rights, including suing for infringement and seeking injunctions and damages.
Protect Your Intellectual Property Today
Whether you are navigating patent pending or building a broader IP strategy, immut gives you instant blockchain-verified proof of your innovations — no lawyers, no delays.