By Tony N. Woolard, USPTO-registered patent attorney and founder of Harborage Law, PLLC. Updated October 2026.
"Patent pending" appears on packaging, websites, and pitch decks everywhere. Here is what the phrase actually means, when you are allowed to use it, and what it does and does not protect.
Short answer
"Patent pending" means that a patent application for the product has been filed with the USPTO and is still pending. It is a notice to the public, not a patent. The right to exclude others from making, using, selling, or importing an invention begins when the patent issues (35 U.S.C. Section 154(a)). Federal law makes it unlawful to mark or advertise a product as "patent applied for" or "patent pending" when no application has been filed or the application is no longer pending, if done for the purpose of deceiving the public, with a fine of up to $500 for every offense (35 U.S.C. Section 292(a)).
When you can use "patent pending"
You can use the phrase once a patent application is on file with the USPTO and for as long as it remains pending. The USPTO states that a provisional application permits authorized use of the "Patent Pending" notice for 12 months in connection with the description of the invention, and a nonprovisional application supports the notice while it is pending before the USPTO. Our article on provisional patent applications explains the 12-month rule.
When you must stop
The notice is tied to a pending application. If a provisional application reaches 12 months without a nonprovisional application being filed, it is regarded as abandoned (35 U.S.C. Section 111(b)(5)), and if a nonprovisional application is abandoned or the patent issues, the application is no longer pending. Section 292 covers marking as "patent pending" when an application "if made, is not pending."
What "patent pending" does not do
It does not let you sue anyone. The patent grant, and the right to exclude others that comes with it, begins on the date the patent issues (35 U.S.C. Section 154(a)).
It does not stop competitors on its own. Until a patent issues, the notice is information, not an enforceable right.
It is not a guarantee that a patent will issue. The USPTO examines nonprovisional applications on their merits, and a patent issues only if the application meets the requirements of the Patent Act.
Provisional rights after publication
There is one limited exception worth knowing. Nonprovisional applications are generally published 18 months after the earliest filing date (35 U.S.C. Section 122(b)(1)). Once a patent issues, the patent owner can obtain a reasonable royalty for infringing activity that occurred between the publication date and the issue date, but only if the infringer had actual notice of the published application and the invention claimed in the issued patent is substantially identical to the invention claimed in the published application (35 U.S.C. Section 154(d)). Provisional applications are not published (35 U.S.C. Section 122(b)(2)(A)(iii)), so this exception does not apply to them.
How long does "patent pending" last?
As long as the application is pending. The USPTO's Patents Dashboard for September 2026 reports an average of 20.5 months from filing to a first office action and 28.8 months average total pendency for utility, plant, and reissue applications. Those are averages; individual applications vary widely by technology.
Marking after the patent issues
Once the patent issues, the marking rules change. Under 35 U.S.C. Section 287(a), a patent owner can mark the product with the word "patent" or "pat." and the patent number, or with "patent" or "pat." and an internet address that lists the patent number. If the product is not marked, no damages can be recovered for infringement except for infringement that continues after the infringer is notified.
Frequently asked questions
Is there a "patent pending" symbol?
No. Unlike trademarks, which use TM, SM, or ®, there is no official symbol for a pending patent application. The words "patent pending" or "patent applied for" are what the statute refers to (35 U.S.C. Section 292(a)).
Can I say "patent pending" with only a provisional application?
Yes. The USPTO states that a provisional application permits authorized use of the "Patent Pending" notice for 12 months in connection with the description of the invention.
How long does a patent last once it issues?
A utility patent term ends 20 years from the date the nonprovisional application was filed (35 U.S.C. Section 154(a)(2)), subject to maintenance fees. A design patent lasts 15 years from the date of grant (35 U.S.C. Section 173).
What happens if I use "patent pending" without an application?
Marking or advertising a product as "patent pending" when no application has been filed or is pending, for the purpose of deceiving the public, carries a fine of up to $500 for every offense, and a competitor who suffers a competitive injury from the false marking can sue for damages (35 U.S.C. Section 292(a) and (b)).
Want patent pending status for your invention?
Harborage Law prepares provisional and nonprovisional patent applications for inventors and startups in every state, with flat fees quoted in writing before any work begins. You can learn about our patent services or book a free consultation.
This article is general information, not legal advice, and reading it does not create an attorney-client relationship.
