The least you should know about the term

Inventors and other applicants for patents should know that the term patent pending is not an instant and concrete right. Not surprisingly, the rights in a patent are conditioned upon the acceptance of the patent application by the USPTO. What is surprising to some, is the fact that rights are retroactive back to the filing date of the first patent application, whether it is a provisional or a non-provisional patent application.



What you should know about the term patent pending is that it essentially means that your rights start from the day you place your patent application in the mail with the US Postal service. From that point forward, any business, company, or other person who, knowingly, or unknowingly makes, uses, or sells a competing product which infringes the claims of your patent will be liable to you for an assortment of damages. Believe it or not, this is still true even if noone at the USPTO has even breathed on your patent application.



Of course, there is a catch. The chance to get damages from someone is all assuming one little fact: your application must be granted. Accordingly, you will not be able to bring a lawsuit until you have an official patent. Needless to say, you get nothing if your application is ultimately rejected.



In conclusion, patent pending does not mean that applicants have instant rights from the time the application is filed. Instead, these rights are prospective and conditional upon the eventual approval of the application. And, yes it is true that rights are go back to the filing date. Consequently, any intervening infringement may yield a damage reward.