Pending vs. Published Patent

Definition

• The term "patent pending" means that the inventor has submitted a patent application or a provisional patent application. Some inventors believe that the term "patent pending" gives their product a whiff of legitimacy so they mark their product or product packaging with this term. This can be misleading because submitting an application is no guarantee that the application will be allowed.
  
  

Penalties

• Falsely marking a product is against the law. 35 U.S.C. 292 provides that whoever uses the words "patent pending" with intent to deceive "shall be fined not more than $500 for every such offense." Given that every single product that is stamped gives rise to a new charge, these fines quickly mount up.
  
  

Possible Confusion

• The term "patent publication" is variously used to refer to (1) the publication of a patent application or (2) a patent that has issued. The publication of patents and patent applications are governed by different rules, so it is important to be very clear what is meant.
  
  

Application Publication

• 37 CFR 37 1.211 governs the publication of patent applications. This code section provides that patent applications will be published 18 months after the filing date. Various exceptions to this include patent applications subject to a secrecy order because they are essential to national security or patent applications that have been withdrawn. Once a patent application has published, it can be used as prior art for other inventions.
  
  

Letters Patent

• Some folks confuse publication of a patent application with the issuance of a letters patent (also known as a ribbon copy). A letters patent is printed by the PTO after the patent application is allowed and the issue fees are paid. It is printed in a particularly stylized way, ribboned, and signed by the director of the PTO.