What does patent pending mean? Can you share your idea?

Should I share my idea before applying for a patent?

It’s almost never to your benefit to disclose your concept before filing a patent application. By doing so, you lose foreign patent rights and risk someone filing first with the Patent Office. If your invention is patent-pending, then you have some options for safely disclosing your concept.

What can be shared after filing a patent application?

What can you discuss after obtaining patent pending status? The simple answer is whatever is disclosed in the patent application as filed.

Any new matter, such as improvements or later versions, should be kept confidential until you file a new application covering any subject matter that was not included in the first filing. The key issue is the content contained in the pending application. Inventors and entrepreneurs want to know if they are sufficiently protected with a pending application such that it’s safe to talk about their patent pending concepts.

Can I stop someone with a pending patent application?

Keep in mind that the owner of a patent application will not have any actual patent rights to enforce against others unless and until the patent is granted. And anyone with patent experience knows that success is not a guaranteed outcome when it comes to the USPTO, especially with utility patent applications.

It is possible to obtain provisional patent rights through a published utility application, but even those rights come into play only if the application is ultimately granted.

What protection does patent-pending provide?

So, patent-pending inventors/owners are protected in the sense that they can disclose their invention without hurting their ability to get a patent. Also, waiting until after applying for a patent to disclose patent pending information minimizes the probability of a third party beating you to the Patent Office under the first-to-file rule. Such patience also enables you to apply for international patent protection because you haven’t violated the absolute novelty bar adopted by most foreign countries.

What are some patent-pending fails?

There are several caveats to patent-pending “protection.” The patent application might not issue, but instead become abandoned. If a nonprovisional application was filed without a nonpublication request, the patent application will be published. So, an applicant risks exposing valuable technical information to the public without getting any exclusivity in return, information which may have been kept a trade secret. 

Another common scenario occurs when only a provisional patent application has been filed, and the applicant fails to convert to a nonprovisional application within the 1-year timeframe. This results in a loss of the earlier provisional filing date, known as the “priority date.” Depending upon when an applicant publicly discloses the covered invention, the loss of the priority date could preclude an applicant from securing U.S. patent rights if more than 1 year has passed since the disclosure date. The option for foreign patent protection would also be lost if the priority date preceding the public disclosure was forfeited.

The key, therefore, to maintaining and gaining patent protection is follow-through. A provisional applicant must follow through with a timely nonprovisional, and a nonprovisional applicant must follow through with the ongoing prosecution to secure the patent if possible.

If you are not yet ready to file a patent application, avoid publicly disclosing your concepts and use NDAs as much as practicable.

Is it safe to sell patent-pending products?

To go from pending to patented is no guarantee, especially when it comes to utility patent applications. A business owner has to weigh the risks of early copycat products while the application is pending against the loss of business in waiting for the patent to be granted. Business considerations beyond IP rights may play a larger role in deciding when to initiate sales of patent-pending products. Selling patent-pending products after the filing date will not jeopardize the patent application so long as the disclosure in the application sufficiently covers what is being sold.

Keep in mind that the vast majority of design patent applications are allowed. An owner of a design patent application may feel more confident about selling products earlier given the higher approval rate and shorter timeframe of design patent applications.

Need to get patent-pending?

Reach out to US patent attorney Vic Lin by email or call (949) 223-9623 to explore how we can get your patent application filed quickly at a flat rate.

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Frenda Williams
Frenda Williams
2023-02-21
I have had the pleasure of working with Vic and his team at Innovation Capital Law Group on Trademark creation and contracts. As a solo and non-tech founder, the assistance, guidance and recommendations from Vic and his team have been INVALUABLE. And, with the knowledge that I have a Solid, well versed and caring legal team I can turn to, I have the confidence I need to navigate the intricacies of the tech industry as a solo founder. With that being said, If you’re a startup and you’re looking for a legal team that speaks your language, knows the industry and makes you feel like family…. Innovation Capital Law Group is a Perfect fit for you, your company and your team. Five out of Five Stars… don’t let their brilliance blind you 😁
Shiwei Liu
Shiwei Liu
2023-02-20
Excellent service and quick response. Lots of informative documents on its website.
Chang Chien Michael
Chang Chien Michael
2023-02-20
I have worked with iCap for more than 7 years. I am very glad with his professional knowledge that 7 utility patents were granted by USPTO. Vic and his team are very efficient and knowledgeable. Every time he can transcribe my design idea perfectly in two weeks and file it with no rejection from USPTO. The other service including the granted patent following up is always in time to remind me to take actions. That is why I still stick on iCap as my first priority when I want to file a US patent.
Mats Johansson
Mats Johansson
2023-02-20
We have been happy client for 10+ years. Awesome Patent Law Firm!
Hanson Chang
Hanson Chang
2023-02-16
Glad to write a review for Innovation Capital Law Group. We previously worked with a big law firm (2200 employees) on our patents, and decided to shift over to Innovation Capital. It was a great decision, this team got our patents done faster, more effectively, at a lower cost, and with broader claims. Win all around
Genevieve Springer
Genevieve Springer
2022-09-09
Clear, discernible tools and strategies couched within a business conceived from a genuine interest in doing right by founders.
InPlay Inc
InPlay Inc
2022-06-30
Vic and his team have been providing us with the best patent application experiences we could ever have in our entire career life! Their professionalism and technical knowledge have really saved us a lot of communication effort and time on the applications. Definitely highly recommend if anyone is looking for help with IP protection for their business.
Meg Crowley
Meg Crowley
2022-03-05
After working with Vic and his team at Innovation Capital Law Group, our organization is confident our trademarks were solid and protected. Thank you team.
Andy Dong
Andy Dong
2022-02-28
I have been using Innovation Capital Law Group for a few years and continue to use them. They have provided an excellent services on our legal issues including intellectual properties and patents . They are very responsive, easy to work with and very competent . I highly recommend them.

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