What Does Patent Pending Mean?

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Table of Contents

• Types of Patents
• Patent Pending at the Provisional Stage
• Patent Pending at the Standard Patent Stage
• Patent Pending for an Innovation Patent
• Patent Pending for a PCT Application
• Key Takeaways
• Frequently Asked Questions

So, you have come up with an idea that will revolutionise your industry. However, before investing money, time and effort in your new invention, it is essential to undertake due diligence and see what inventions already exist. When doing so, you may come across the phrase ‘patent pending’ on a description of an invention that sounds similar to yours. But what does that mean? This article outlines: 

• the different types of patents; and 
• what patent pending means for each type. 

Types of Patents

A patent is an intellectual property (IP) right giving you exclusivity over your invention for a specific period of time. You also have authority to make, sell or use the invention. Several patents provide different rights, restrictions and protection. These are set out below.

Patent Pending at the Provisional Stage

IP Australia never looks at a provisional stage patent. It is not enforceable unless it converts to a complete patent. Patent pending may, therefore, never amount to protection for a provisional patent. However, as there is no disclosure of a provisional patent application to the public, it is impossible to know whether the provisional application will proceed to a complete application before the 12 months comes to an end.

Patent Pending at the Standard Patent Stage

After five years of applying for a standard patent in Australia, there must be a request for an examination. The examination will occur within 12 months of the request. Therefore, a patent pending for a standard patent may mean that it could be five to six years before examination occurs.

Patent Pending for an Innovation Patent

If there is no request for an innovation patent to undergo an examination, IP Australia may never examine it. Therefore, because a patent pending for an innovation patent is unexamined, it is not enforceable. Unlike a provisional patent, the details of an innovation patent application are publicly available. Hence, you can view the innovation patent application (with the help of a patent attorney) to determine its legitimacy. If you (and your patent attorney) decide that it may not meet the threshold requirement, you can request an examination as a third party to challenge the application.

Patent Pending for a PCT Application

A PCT application is subject to an international search report and written opinion. The application must meet the standards of the World Intellectual Property Organisation (WIPO). WIPO will issue a final report within 28 months of the filing date. If, after 30 months, WIPO’s report is favourable, the applicant must file for a patent in each country where they want protection. A PCT is not enforceable until it is accepted by a specific country.

Key Takeaways

If you are thinking about applying for a patent, it is important to understand what patent pending means. You may come across patents that are pending when searching the market to determine whether there are similar inventions to yours. It is easier to determine what patent pending means, and what effect it may have on your product and patent application, when you know about the different types of patents. 

Frequently Asked Questions