Use of the phrase "patent pending" or similar wording to mark a product is intended to notify the public that the maker of the product may acquire patent rights and, if so, intends to enforce those rights. There is no legal requirement that this wording be used on any product, even when a patent application is pending. However, if a product bears the words "patent pending" when in fact no patent application has been filed or is no longer pending, the maker of the product can be liable for false marking of the product under federal patent law.
The United States Patent and Trademark Office is the government agency responsible for processing patent applications and issuing patents grants for new products and inventions in the U.S., its territories and possessions. A patent grant is a valuable property right that gives the inventor the exclusive right to exclude all others from "making, using, offering for sale, or selling" products covered by the patent, including the right to prohibit the importation of such products into the country. A patent grant is generally effective for 20 years from the date the patent application was filed. A patent application takes from three to six years to be processed, with approximately 40 to 70 percent of the applications resulting in patent grants.
Patent Pending Marks
After submitting a patent application, the applicant can mark a product covered by the patent application with such phrases as "patent pending" or "patent applied for." Although such markings are commonly used, they have no legal effect. Patent protection does not begin until the USPTO actually issues a patent grant for the product. Such markings cannot be used if a patent application has not been submitted to the USPTO or a once pending application is denied and no patent grant was issued. Improper use of markings such as “patent pending” can result in civil fines.
Penalties for Incorrect Use of Patent Pending
Title 35, Section 292 of the United States Code prohibits the false of the phrase "patent pending" or similar phrases for the purpose of deceiving the public. Anyone improperly using such a mark is subject to a $500 fine for each offense. Any member of the public can sue to enforce the penalty, with the total penalty recovered being shared on an equal basis between the person suing and the United States.
Patent Marks on Products
Anyone selling or making a product subject to a patent grant may mark the product to give notice of the patent to the public. Title 35, Section 287(a) of the United States Code specifies that products covered by patents are to be marked by using the word “patent” or abbreviation “pat.,” along with the patent number. If it is impractical to place the mark on the product, it can be affixed to the product's labeling or packing. In general, the patent owner cannot recover damages for patent infringement if the product is not properly marked. The only exception to this rule is in a situation where the patent owner actually notifies the infringing party of the patent and party continues to infringe on the patent.