You may have noticed that some everyday products are marked ‘patent pending’ or ‘patented’ but what do these terms actually mean, and what purpose do they serve?
‘Patent pending,’ ‘patent applied for’ and ‘patent application no. 12345678’
Phrases similar to ‘patent pending,’ ‘patent applied for’ or ‘patent application no. 12345678’ are typically used by intellectual property applicants to inform third parties that an application for a patent has been applied for. Such markings may be strategically used to deter the copying of an invention, even in the event that a granted patent is unlikely to be ultimately obtained for the invention.
‘Patented,’ ‘Registered patent’ and ‘Patent no. 12345678’
Phrases similar to ‘patented,’ ‘registered patent’ or ‘patent no. 12345678’ are typically applied to products to indicate that the product is protected by a patent. However, contrary to popular belief, such a patent may, or may not provide enforceable rights to the patent owner, at least in Australia.
In the case of standard patents, phrases such as those mentioned above indicate that a patent application has been filed, the patent application has undergone substantive examination and owner of the patent has obtained exclusive rights to exploit (e.g. use, sell, offer to sell or manufacture) the patented invention. Accordingly, if a third party attempts to exploit the patented invention, then they may be pursued for infringement by the patent owner.
Innovation Patents
However, in Australia, this is not the case for innovation patents. Innovation patents are a different type of patent and offer limited protection to an applicant or owner. It is important to be aware that innovation patents proceed to grant shortly after an innovation application is filed without undergoing substantive examination prior to grant. This means that while an innovation patent has been granted (and a product embodying the patented invention may be legitimately marked ‘patented’ similar to the standard patents discussed above), those rights are not enforceable until the patent has undergone substantive examination and the innovation patent has been ‘certified.’
Summary
The terms ‘patent pending,’ ‘patent applied for’ and ‘patent application no. 12345678’ as well as ‘patented,’ ‘registered patent’ and ‘patent no. 12345678’ are often used as strategic tools for deterring patent infringement. Third parties should be aware, however, that not all of these terms confer enforceable patented rights and this is something that third parties should be mindful of when interpreting the above phrases.