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A pending patent typically refers to a patent application that has been filed, but not yet granted. Patent pending status therefore  includes, in general, both provisional patents in the initial 12-month provisional patent period or standard patents that have been filed and not yet granted.

Provisional Patents  – a Patent Pending?

Most inventions are initially protected by a provisional patent application for an initial or “pending” 12-month provisional patent period  whilst the details of the invention or market strategy are being finalised. An Australian provisional patent application is valid internationally and will reserve your rights in most countries around the world provided your patent specification is drafted to international standards (and no, the IP Australia guides or examples will not meet this requirement – so contact us if you need an international level provisional patent application).
An Australian provisional patent application is valid internationally and will reserve your rights in most countries around the world for a 12-month period until a complete patent application is filed.

Marking of Products – Pat. Pending?

Whilst it is common to use the words “Patent Pending” or “Pat. Pending” or the like, there has been some suggestions (in Australia at least) that the use of the words “Patent Pending” is misleading, especially when used in connection with provisional patent applications. As such, the wording “Patent Applied for”, or safer still “Provisional Patent Applied for” is preferred in Australia to indicate that a provisional patent application has been filed. Once a standard or International patent application has been filed then you may more safely adopt the more usual “Patent Pending”. It is important to note that you should not indicate a product as “Patented” until the patent has been formally granted and there are penalties if you incorrectly mark your product.
It is important to note that you should not indicate a product as “Patented” until the patent has been formally granted and there are penalties if you incorrectly mark your product.

What about Innovation Patents?

Innovation patents are granted very quickly and without substantive examination. Accordingly, Innovation patents are only “pending” for a short period before being granted. A granted Innovation Patent cannot be enforced unless certified by way of examination. So, it is arguable that the use of the words “Patented” for a granted (not yet certified) Innovation patent is misleading. As such, it may be preferable to use the wording “Australian Innovation Patent” or “Innovation Patent No. 123456” or the like, so that it is clear the product is protected only by an Innovation patent. If the Innovation Patent is certified then the rights become inline with those of  a granted Australian Standard patent and the wording “Patented (in Australia)” or the like may be used.

Steps and How to get Patent Pending

If you would like to get patent pending Internationally, please contact Caska IP Patent Attorneys and we can arrange for the preparation and filing of an international level provisional patent application to protect your invention.

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