Being able to claim “patent pending status” can be an important marking for your product or technology to display your intellectual property rights. There are some specific marking rules that you will need to follow, however, to claim this patent pending verbiage for your invention. In general, you must make a good faith effort that your invention has proper markings and done in a consistent manner.
How to Display Patent Pending on a Website
It is important for you to display adequate patent pending markings on your invention so that you are eligible to pursue patent infringement claims against any potential patent infringers.
Under United States patent law, you must provide proper and adequate notice to be eligible to bring a patent infringement claim against a potential infringer. In specific terms, you can only recover damages from the date that adequate notice was provided to the public.
Historical Display of Patent Pending Status
Historically, proper notice of patent pending status or patented status meant that the patent applicant needed to physically mark the invention with the applicable patent numbers. This marking would need to be made through an engraving, molding, or other labeling process.
Current Display of Patent Pending Status
In today’s digital age, you are able to use a website as a means to display a patent-pending status or patent status for an invention. This was made possible under what is called the New Patent Marketing Rules, which are also referred to as virtual patent marking.
Now, a patent holder can display on a website a list of its products and their corresponding patent numbers or patent-pending status to satisfy specific notice requirements. They still must make some markings on their actual invention, however.
Notice Requirements
Notice requirements are important because they are required under United States patent law to qualify for a patent infringement claim. Notice can be either constructive notice or actual notice.
Constructive notice is the legal concept that a person or entity should have known, as a reasonable person would have, about the patent-pending status or patent, even if that person or entity did not actually have knowledge of it. Actual notice is the legal concept that the person or entity did in fact have notice of the patent-pending or patent status of an invention.
Your patent-pending markings must meet these constructive notice or actual notice standards in order to bring a successful patent infringement claim.
Virtual Marking Requirements for Patents
Under the current virtual marking requirements, the following must be done:
- Physically mark your invention with either the word “patent” or a related abbreviation for the word patent (e.g., “pat.”).
- Physically mark your invention with the web address where the list of your patents and corresponding patent numbers can be found.
- Example: Patent “[insert web address]”
- Develop and maintain a website that displays a list of all of your inventions and their corresponding patent application numbers and/or patent numbers.
- This website must clearly identify the invention you are referring to with enough specificity that there is no confusion with any of your other products or any other products that may be created by other companies.
- This website must be available to the public without any charge for accessing the website.
- There must be no registration, subscriptions, or profile creation requirements to access the website.
- This website must be consistently updated to reflect accurately all of your patents and their relevant status.
- This website must remove any expired patent from its listing in order to avoid potential liability under the United States Patent and Trademark Office’s False Marking statute.
Example of Website Patent Marking Display
Examples are often the most helpful in understanding these virtual marking requirements. Set out below is an example of an appropriate patent-pending status display on a website:
[INSERT NAME OF PATENTED PRODUCT, E.G., TRADE NAME, ETC.]
[insert brief description of your patented product]
Covered by:
US Patent. No. 4,524,783 [EXPIRED]
US Patent. No. 7,628,198
This example will likely be considered sufficient under the new virtual marking provision laws. Of note, however, this law is still new and therefore there is not a breadth of case law on the topic. This means the area is still wide open for various judicial interpretation.
This means anyone specific judge may not find the above sufficient. Nevertheless, given the language of the statute and how other companies have carried out these requirements, it is likely sufficient.
Overall, it can be helpful to seek legal advice from a patent attorney to make sure your website meets all applicable requirements.
Must Apply for a Patent to Get Patent Pending Status
It is important to note that you cannot claim patent pending status for an invention until you have filed an application with the United States Patent and Trademark Office. This can be either a provisional or non provisional patent application, just so long as something has been filed with the Patent Office.
How Long Does It Take to Get Patent Pending Status?
Once you have filed a patent application with the United States Patent Office, you can claim patent pending status for your invention immediately. This means that as soon as you file a provisional patent application, even if your formal (non provisional) application has not yet been filed, you can still claim patent pending status.
Changing Status From Patent Pending to Patent Approved
Once your patent application has been approved by the Patent Office, you must change the patent pending marking status on your website so that the website reflects the current state of your patent. This means you must also update the website with the application patent number.
Similarly, you must keep your website up to date on any potential expirations of patents. Still keep the expired patent number on your website, just make a note that the specific patent is now expired.
