What’s the Difference Between Patented and Patent-Pending?

Calendar Icon Updated January 15, 2019
Patents

If you’ve watched an infomercial or “As Seen on TV” commercial, you’ve probably heard the phrase “patent-pending.” But, do you know how that’s different from having a full patent? Many people don’t, which can cause problems and confusion during the patent application process. Having a patent and having patent-pending status are two different kinds of protections against competitors, but each means something different and offers varying levels of protection.

What is Patent-Pending and How Do You Get It?

Patent-pending is just want it sounds like — you have product or process that is currently working through the patent process. Patent-pending status protects your innovation while you are working through the patent process by keeping competitors from scooping your idea and marketing it as their own. Most innovators can use the patent-pending labeling up to one year while they work to submit their full patent process.

It’s important to know that patent-pending isn’t an automatic protection while your application is being reviewed. The only way you can use patent-pending terminology is if you’ve applied for a provisional patent – that is, a temporary patent that costs less than a full patent (usually between $65 and $260) and processes much faster with a smaller amount of information (often with just basic drawings and simple descriptions). Provisional patents exist to help individuals offer some protection while they work through the full application, which can take a lot of time. If you file for a provisional patent and are approved, you have up to one year to file for a full patent, and in that time can use the phrase “patent-pending.”

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Be wary of a common pitfall of patent applications: using the “patent-pending” status without having a provisional patent. If you file for a regular patent without a provisional patent, you do not have “patent-pending” status. While this can seem confusing because you potentially could have a patent, it’s important to understand that simply submitting a regular patent application does not offer protections until it is approved by the U.S. Patent and Trademark Office.

What Makes Patent-Pending Different?

Patent-pending sounds great, doesn’t it? It can be a beneficial tool, but it does differ from a regular patent. Patent-pending status is temporary and only offers protection up to one year, which is starkly different from the 14 to 20 years a regular patent could provide. During the patent-pending time period, you have the same protections as a regular patent, but you should be wary that these will expire. Additionally, provisional patents require you to file for a full patent, meaning you could pay more in the long run by utilizing both kinds. If you file for a regular patent, you’ll only pay for it (and any attorney’s fees).

Are Provisional Patents a Good Idea?

Some people think that getting a provisional patent is a strong option, while others disagree. Every situation is different, but a strong starting point is to consider how much work you can do in one year on your invention — that is creating a working prototype and fulfilling the regular patent application requirement. If you feel that the one year requirement is not enough time, it may be best to continue designing your invention and then file for a provisional patent later on, or simply file for a regular patent.

Can You Lose Patent-Pending Protection?

Patent-pending protections are only meant to be temporary, as a means to safekeeping your invention while you work through the full patent application. Because of this, you can, in fact, lose patent-pending status, in which case your innovation is not protected from competitors. If you fail to file a regular patent application and your provisional patent expires, your invention will have no protections at all.

Going through the patent process can be tedious, but a provisional patent can help take off some of the stress while providing you with income (if you choose to market your item) and protections from competitors. So long as you follow the patent-pending requirements, you could easily transition from a provisional patent to a full patent without worries.

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Eligibility Team

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