Innovation is bubbling, the drawing board is out, and you have come up with an idea that will revolutionise your industry. Before investing money, time and effort in your new invention, it is essential to undertake due diligence and see what inventions already exist. You may come across 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. 

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.

Provisional Patent

(Australia)

Standard Patent

(Australia)

Innovation Patent

(Australia)

Patent Cooperation Treaty (PCT)

(International)

What it Protects Offers a priority date in order for the inventor to develop the invention before applying for a complete application. It acts as a placeholder. A new and non-obvious invention. An innovation that is a development or improvement of an existing product or process. Preliminary protection for your invention (similar to a provisional patent) across 152 countries.
Length of Protection 12 months from the filing date. 20 years from the filing date (and up to 25 years for pharmaceutical products). Eight years from the filing date. 30 months from the filing date or the priority date (if based on a provisional patent).
Enforcement A provisional patent is not enforceable until it converts to a complete patent, which you must file within 12 months. Not enforceable until examined. The examination is mandatory but can take anywhere from six months to several years. It is usually granted within a month of application but is only enforceable upon a request and grant of an examination. An examination is not a requirement but necessary for enforcement. Similar to a provisional patent, the PCT acts as a placeholder until the inventor is ready to apply directly to each country of choice, which you must file within the 30 months.

 

Therefore, patent pending can mean different things depending on which type of patent it refers to.

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 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.

If you have any questions or need assistance determining what the effect of patent pending means for your invention, get in touch with LegalVision’s patent lawyers on 1300 544 755 or fill out the form on this page.

Alexandra Shaw
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