Now that you know what “patent pending” means (i.e. a patent application is pending), a more complicated, and not so straightforward matter is to know what, exactly, is being patented.  In the case of software, is it the entire program, or just a small, function or individual application within the complete software package.

Further complicating matters, the country where the patent application is pending may also be unclear.  Therefore, one cannot simply consult a central patent application database to discern what is being patented.  Typically, one needs to conduct a patent search using various different databases, most often done by a trained professional such as a search agent, with the results reviewed by a patent attorney. Therefore, it is recommended that you consult your friendly neighborhood patent attorney.

Look closely at a product, the package of a piece of software or even in the small print at the bottom of a website, and you may see two small words, “patent pending.” But what exactly does this mean? In the case of a website, does this mean a patent will soon issue, is the whole website to be patented, or only a small aspect, perhaps just a small applet? And, when I can I put “patent pending” on my product or software.

“Patent Pending” means that an application for a patent application has been submitted to a national patent office, e.g. the US Patent Office. At least the applicant believes that the patent application covers a new, non-obvious and useful invention, e.g. a device or process. The patent application can be a provisional or non-provisional application filed in the United States or an international PCT application.  Due to an involved examination process, there is no guarantee that a pending patent application will ever issue as a patent. Further, provisional patent applications expire after one year, so if another provisional or a non-provisional patent covering the same invention is not filed within that year, the subject matter or invention of the provisional ceases to be considered “patent pending.”

See future posts for more on the distinction between provisional, non-provisional and international patent application in subsequent posts.