When can I mark my product with a "patent pending" label?

The “patent pending” marking can be used on any product containing an invention for which a patent application has been filed. Provisional patent applications are pending patent application for purposes of marking and for using the “patent pending” label.

The purpose of marking a product with the “patent pending” label is that it provides notice to the public that a patent has been applied for, and at some point in the future a patent may issue on that product, and any copying or production of the product may result in patent infringement. The “patent pending” marking is very valuable because it creates a chill in the marketplace. Competitors will be cautious about investing the time and resources to develop or copy a product to ramp up manufacturing and open channels of distribution only to have a patent issue on the technology. By placing a “patent pending” marking on your product, it provides notice to the world that there is likelihood that a patent may issue at some future time, and any products being made, used or sold at the time of the patent issuance would, at that point, be infringing. It should be noted, however, that it is illegal to falsely mark a product “patent pending” or “patented”.

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About the Author

John Ferrell is a founding partner of Carr & Ferrell LLP, one of Silicon Valley's foremost technology law firms, and specializes in patent and intellectual property law matters. He is the Chair of the firm's Intellectual Property Practice Group.