Based in Los Angeles, California and licensed to practice before the USPTO and the State Bar of California.
The term patent pending has created quite a bit of confusion over the years. Many inventors mistakenly believe that they are able start filing lawsuits like a semi-automatic machine gun the day after they file their provisional or nonprovisional patent application with the United States Patent and Trademark Office. This misguided belief is anchored in the misunderstood concept of patent pending which will be illuminated below.
First, you should know that the term patent pending means that you might have rights in the present if all goes well in the future. In other words, if your application is eventually approved by the USPTO a couple years from now, you might be able to sue someone for the profit he or she makes in the time leading up to the acceptance of your patent application. That is why we say that your rights are retroactive. However, on balance, it is snake eyes if you are rejected. And that is the reason why you won’t be able to file a lawsuit until your patent application is finally accepted.
In conclusion, inventors should know that the term patent pending is not unconditional. Although the rights extend backwards from the patent grant date to the filing date of the first patent application, there will be no recourse if the application is ultimately rejected. However, in the event that someone does infringe the claims of the patent, and the application is eventually granted, a person may possible acquire a financial windfall in the process.
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