What Is Patent Pending Status and How Do You Get It?

Key Definitions

Patent Pending

A legal designation indicating that a patent application has been filed with the USPTO. It can be applied to products, marketing materials, and documentation from the moment of filing.

Provisional Patent Application

A preliminary filing under 35 U.S.C. §111(b) that establishes a priority date without requiring formal claims or examination. Filing one immediately grants patent pending status.

Non-Provisional Patent Application

The formal utility patent application filed under 35 U.S.C. §111(a) that gets examined and can result in a granted patent. Also grants patent pending status from the filing date.

Patent Granted / Patented

The status after the USPTO examines a non-provisional application and issues a patent. At this point, “patent pending” is replaced with the patent number on products and materials.

False Marking

Under 35 U.S.C. §292, marking a product as “patent pending” when no application has been filed, or when a previously filed application is no longer pending, with the intent to deceive the public, is a federal offense carrying fines of up to $500 per offense.

Introduction

“Patent pending” is one of the most recognized legal phrases in business, and one of the most misunderstood. Founders put it on their websites. Investors look for it on pitch decks. Competitors take notice when they see it. But few people outside of patent law understand exactly what the designation means, what legal weight it carries, and how easy it actually is to obtain.

Here is the short version: patent pending means you have filed a patent application with the USPTO. That is it. It does not mean you have a patent. It does not mean your invention is protected from copying. It does not mean the USPTO has reviewed your invention and found it patentable. It means an application is on file, and the process has begun.

Despite what it does not do, patent pending status is strategically valuable. It establishes your filing date in the first-to-file system, puts competitors on notice that patent rights may be forthcoming, and gives you the legal basis to use the designation on your products and marketing. And you can get it today by filing a provisional patent application. This guide explains exactly what patent pending status is, what it protects and what it does not, how to get it, and what comes after.

What Patent Pending Actually Means

When you file a patent application with the USPTO, your invention enters “patent pending” status. The designation applies from the moment the USPTO receives and assigns a filing date to your application. It continues until one of three things happens: the patent is granted, the application is abandoned, or the application is rejected and all appeal options are exhausted.

During this period, the USPTO has acknowledged your filing, but it has not made any determination about whether your invention is patentable. If you filed a provisional application, no examination will occur at all, because provisionals are not examined. If you filed a non-provisional application, examination typically begins 18 to 26 months after filing, depending on the technology area.

The phrase “patent pending” (or the equivalent “patent applied for”) can be applied to the product itself, its packaging, your website, marketing materials, pitch decks, and any other public-facing communication. You are not required to use it, but there are strategic reasons to do so, which we will cover below.

What you cannot do is use “patent pending” if no application has actually been filed, or if a previously filed application is no longer pending (for example, if it was abandoned). Under 35 U.S.C. §292, marking a product as “patent pending” without a valid pending application, with the intent to deceive the public, is a federal offense. Fines can reach $500 per offense, and competitors who suffer competitive injury from the false marking can file civil lawsuits for damages.

What Patent Pending Does (and Does Not) Protect

This is where most of the confusion lives. Understanding the distinction between what patent pending status gives you and what it does not is essential before you rely on it.

What patent pending status gives you

A filing date. In the first-to-file system established by the America Invents Act, your filing date determines priority. (For a detailed explanation, see our guide on first-to-file vs. first-to-invent.) Filing a provisional or non-provisional application secures that date immediately. If a competitor files a similar invention after your filing date, your earlier date gives you priority for any claims that your application adequately supports.

The right to use the “patent pending” designation. This is not just a marketing tool. It serves as a public notice that you are pursuing patent protection. It signals to competitors that copying your invention may expose them to future infringement liability if the patent is granted. While “patent pending” itself carries no enforcement power, the awareness it creates can deter some competitors from entering your space.

Retroactive damages potential. Under 35 U.S.C. §154(d), once a patent is granted, the patent holder may be entitled to a reasonable royalty from anyone who infringed the invention during the period between the publication of the patent application and the grant date. This is sometimes called “provisional rights.” For this to apply, the infringer must have had actual notice of the published application, and the claims in the granted patent must be substantially identical to the claims in the published application. This provision applies only to non-provisional applications that are published (typically 18 months after filing).

12 months of runway (if you filed a provisional). A provisional application gives you 12 months to prepare and file the non-provisional application while maintaining patent pending status. During this window, you can develop your invention further, conduct market testing, seek funding, and prepare stronger claims.

What patent pending status does not give you

Enforceable patent rights. You cannot sue for patent infringement based on a pending application. You cannot send cease-and-desist letters based on a pending application. You cannot license the invention under an issued patent. Until the patent is actually granted, you have no enforceable exclusionary rights.

Any guarantee of patent issuance. Patent pending status means an application is on file. It says nothing about whether the invention will ultimately receive a patent. The application could be rejected on novelty (§102), non-obviousness (§103), subject matter eligibility (§101), or disclosure grounds (§112). For software, SaaS, and blockchain inventions, §101 eligibility is a particularly significant hurdle. (See our guides on software patent eligibility and blockchain patent eligibility.)

Protection against independent development. If a competitor independently develops the same technology without copying your work and brings it to market, patent pending status does not give you any basis to stop them. Only a granted patent provides that right.

International protection. Patent pending status in the U.S. does not extend to other countries. If you want patent protection abroad, you must file separate applications in each jurisdiction (or use the PCT system), and you have 12 months from your U.S. filing date to do so under the Paris Convention.

How to Get Patent Pending Status

There are two ways to get patent pending status: filing a provisional patent application or filing a non-provisional patent application. For most inventors, especially those in the early stages of development, the provisional is the better starting point.

Option 1: File a provisional patent application

A provisional application is the fastest and most affordable path to patent pending status. Here is what it requires:

A written description of your invention detailed enough that a person skilled in your technology field could understand and potentially recreate it (satisfying the §112(a) standard).

Drawings, if necessary for understanding the invention. Informal sketches, screenshots, and computer-generated diagrams are all acceptable.

A cover sheet (Form PTO/SB/16) identifying the filing as a provisional, listing all inventors, and providing contact information.

The filing fee: $80 for micro entities, $160 for small entities, or $320 for large entities (as of the January 2025 fee schedule).

No formal claims, oath/declaration, or information disclosure statement are required.

Once filed, you are immediately in patent pending status. The provisional is not examined and expires after 12 months, but during that window you can use “patent pending” on everything.

For a complete walkthrough of the drafting process, see our guide on how to draft a provisional patent application. For a comparison of provisionals and non-provisionals, see provisional vs. non-provisional patent applications.

Option 2: File a non-provisional patent application

Filing a non-provisional directly also grants patent pending status, and the status persists through the entire examination process (which can take 2 to 3 years or longer). A non-provisional requires formal claims, an oath/declaration, and combined filing, search, and examination fees of approximately $1,600 or more. This path makes sense when your invention is fully developed and your claims are well-defined, but for most inventors, filing a provisional first is more practical.

How to Use the Patent Pending Designation

Once you have filed your application and received your filing confirmation from the USPTO, you can begin using the designation. There are no required formats, but standard phrasings include “Patent Pending,” “Pat. Pending,” and “Patent Applied For.”

Where to use it

On the product itself. If you manufacture a physical product, you can mark it directly. For software, SaaS, and blockchain products where there is no physical item to mark, you can include the designation in the application interface, documentation, and terms of service.

On your website and marketing materials. Product pages, landing pages, pitch decks, press releases, and promotional content can all reference patent pending status.

In investor communications. Patent pending status is relevant to investors because it signals that you are building a defensible IP position. Include it in your pitch materials with a brief note about what the application covers.

When to stop using it

You must stop using “patent pending” when your application is no longer pending. This happens when the patent is granted (at which point you switch to the patent number), when the application is abandoned (including when a provisional expires without a corresponding non-provisional being filed), or when the application is finally rejected with no further appeal. Continuing to mark products as “patent pending” after the application is no longer pending, with the intent to deceive the public, violates 35 U.S.C. §292. This applies even if the false marking was initially accurate: if your provisional expires and you do not file a non-provisional, you must remove the “patent pending” designation from all products and materials.

The Strategic Value of Patent Pending for Startups and Independent Inventors

For early-stage companies and independent inventors, patent pending status serves several strategic functions beyond the legal.

Competitive signaling. When competitors see “patent pending” on your product, they know that copying it carries risk. If the patent is eventually granted, their product could become infringing retroactively. While this does not stop determined competitors, it does introduce uncertainty into their decision-making, which can slow them down or redirect their development efforts.

Fundraising credibility. Investors, particularly in software and deep tech, look for IP protection as evidence that a company is building defensible value. Patent pending status demonstrates that you have taken concrete steps to protect your technology, even before a patent is granted.

Licensing foundation. Patent pending status can serve as the basis for preliminary licensing discussions. While you cannot license an unissued patent, you can structure agreements that include provisions for when the patent grants. Having a pending application gives these conversations a concrete foundation.

First-to-file protection. In the AIA's first-inventor-to-file system, the primary value of patent pending status is the filing date itself. The moment your application is filed, you have established your position in the race. Everything else follows from that.

What Happens After Patent Pending

Patent pending status is a phase, not a destination. Here is the typical sequence.

If you filed a provisional: You have 12 months to file a non-provisional application that claims the benefit of the provisional's filing date. If you do not file within 12 months, the provisional expires and you lose both the priority date and your patent pending status. (You can still file a non-provisional after 12 months, but it will not benefit from the provisional's filing date.)

If you filed a non-provisional (or converted from a provisional): The application enters the USPTO's examination queue. The first Office Action typically arrives 18 to 26 months after filing. The examiner reviews the application for patentability and issues rejections or allowances on each claim. You respond with arguments, amendments, or both. This process repeats until the claims are allowed, abandoned, or appealed. Patent pending status continues throughout this entire process.

If the patent is granted: You transition from “patent pending” to “patented.” You receive a patent number and can begin enforcing your rights. You should replace “patent pending” with the patent number (or a URL linking to patent information under the virtual marking provisions of §287) on all products and materials.

If the application is abandoned or rejected: Patent pending status ends. You must stop using the designation. If you believe the rejection was incorrect, you may have appeal options through the Patent Trial and Appeal Board (PTAB) or the Federal Circuit.

How Patent Geyser Helps You Get to Patent Pending

Patent Geyser is designed to get you from invention concept to a structured provisional draft as efficiently as possible. The platform walks you through five modules: brainstorming and idea screening (Module 1), concept refinement (Module 2), prior art research (Module 3), claim generation and white space analysis (Module 4), and technical diagram creation (Module 5). The output is a provisional specification with title, background, summary, detailed description, claims, abstract, and drawings, structured for professional review before filing.

Filing that draft as a provisional application gives you immediate patent pending status. The entire process, from idea to draft, can happen in days rather than weeks, which matters in a first-to-file system where every day counts.

But remember: Patent Geyser produces drafts, not filing-ready applications, and it does not provide legal advice. Before you file your provisional with the USPTO, have a registered patent practitioner review your application. If you need help finding one matched to your technology area, the PatentFit Directory scores practitioners based on their actual USPTO filing history across 112 CPC technology areas.

Conclusion

Patent pending status is straightforward to obtain, strategically valuable, and widely misunderstood. It means an application has been filed. It does not mean a patent has been granted or that your invention is legally protected from copying. But it establishes your filing date, puts the world on notice, and starts the process that leads to enforceable patent rights.

The fastest path to patent pending is a provisional patent application. For as little as $80 in filing fees, you can secure your priority date today and take 12 months to prepare the full non-provisional. For software, SaaS, and blockchain inventors working in fast-moving markets, that combination of speed, affordability, and strategic value is difficult to beat.

Frequently Asked Questions

Understanding the Status

What does “patent pending” mean?

Patent pending means that a patent application (either provisional or non-provisional) has been filed with the USPTO and has not yet been granted, abandoned, or finally rejected. The designation can be applied to products, packaging, websites, and marketing materials from the moment the application is filed. It does not indicate that the invention has been reviewed or approved by the USPTO, and it does not confer enforceable patent rights.

Is patent pending the same as having a patent?

No. Patent pending indicates that an application is on file. A patent is a granted right that allows you to exclude others from making, using, selling, or importing the claimed invention for 20 years from the non-provisional filing date. You cannot sue for infringement or enforce exclusionary rights based on patent pending status alone. Only a granted patent provides those rights.

How long does patent pending status last?

For a provisional application, patent pending status lasts 12 months (the provisional's pendency period). If you file a non-provisional within that window, patent pending status continues through the entire examination process, which typically takes 2 to 3 years but can take longer depending on the technology area and the number of Office Action cycles.

Getting and Using the Status

What is the fastest way to get patent pending status?

File a provisional patent application. It requires a detailed written description of your invention, any necessary drawings, a cover sheet, and a filing fee of $80 to $320 depending on entity size. No formal claims or oath are required. Once the USPTO assigns a filing date, you are in patent pending status. For a step-by-step guide, see how to draft a provisional patent application.

Can I put “patent pending” on my website if I only have a provisional?

Yes. A filed provisional patent application gives you the legal right to use “patent pending” on your product, website, marketing materials, and any other public-facing communication. The designation applies equally whether you have a provisional or a non-provisional on file. The key requirement is that an application must actually be pending with the USPTO. Using “patent pending” without a pending application, with the intent to deceive the public, is a violation of 35 U.S.C. §292.