What Legal Protections Do You Have While Your Patent Application is Pending?

As an inventor, applying for a patent is a critical step to protect your intellectual property (IP). However, the patent process can take time, and many inventors wonder what protections they have while their application is still under review. More importantly, is it safe to share your invention with potential investors, collaborators, or manufacturers before the patent is finalized? Here’s a breakdown of the legal protections available and the associated risks.

1. Patent Pending: What Does It Mean?

Once you file a patent application with the U.S. Patent and Trademark Office (USPTO), your invention is considered "patent pending." This status signals to the public that you have a claim on the invention and that a formal patent may soon issue. While “patent pending” provides some deterrence, it is important to understand that no actual patent rights exist until the patent is granted. During this pending phase, you do not yet have the full legal authority to prevent others from making, using, or selling your invention.

2. Provisional Patent Application: Additional Leverage

If you filed a provisional patent application, this can buy you extra time to refine your invention or secure funding. A provisional application gives you a 12-month window to file a full non-provisional application while establishing an earlier priority date. Importantly, it allows you to label your invention as "patent pending" during this period. However, like the general patent-pending status, a provisional application alone doesn’t confer the ability to enforce your rights legally against infringers.

3. Legal Protections Against Copying

During the patent-pending phase, you **cannot sue for patent infringement** because your rights under the patent law are not yet established. However, you can take proactive steps to reduce the risk of someone else copying your invention:

- Use Non-Disclosure Agreements (NDAs): If you need to share your invention with investors, potential partners, or manufacturers, using an NDA can help safeguard your ideas. An NDA is a legally binding contract that prevents the recipient from disclosing or using your invention without permission.

- Marking Your Product as Patent Pending: While this marking doesn’t stop others from copying your invention, it can act as a deterrent, indicating that a formal patent might soon issue and create future liability for infringers. Falsely marking a product as "patent pending" when no application has been filed, however, is illegal under U.S. law.

4. The Risk of Public Disclosure

Publicly sharing your invention before a patent is granted presents several risks:

- Loss of Foreign Patent Rights: In many countries, disclosing your invention publicly (e.g., through marketing, public presentations, or sharing on social media) before filing a patent application can disqualify you from receiving a patent. This is because many countries operate on an "absolute novelty" requirement, meaning the invention must not have been publicly available anywhere prior to filing.

- U.S. Grace Period: Fortunately, the U.S. allows a one-year grace period from the date of public disclosure during which you can still file a patent application. But any disclosure before filing could still jeopardize your rights abroad.

- Increased Risk of Copying: Without enforceable patent rights, others may be tempted to copy your invention, especially if they believe they can act without consequence during the patent-pending phase.

5. Best Practices for Sharing Your Invention Before Patent Approval

If sharing your invention is necessary before your patent is finalized, follow these steps to minimize risk:

- Use NDAs: Ensure that all parties who will have access to your invention sign an NDA. This includes potential investors, partners, and manufacturers. NDAs create contractual obligations that protect your proprietary information, even in the absence of enforceable patent rights.

- Keep Detailed Records: Document the development of your invention and any disclosures you make. This can serve as evidence in case there are disputes about the ownership or originality of the invention.

- File Early: To avoid the pitfalls of public disclosure, file your patent application as early as possible, even if it’s a provisional application. This will give you the ability to claim the earliest priority date, which can be crucial in the event of competing claims.

Conclusion: Is It Safe to Share My Invention Before Patent Approval?

While "patent pending" provides some procedural benefits and public notice, it does not give you full legal protection until your patent is granted. Sharing your invention can carry risks, especially if it’s done publicly or without appropriate legal safeguards in place.

The best course of action is to always use NDAs, file for patent protection as early as possible, and carefully manage your disclosures. By doing so, you can mitigate risks and protect your innovation while your patent application is under review.

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If you have more specific questions about your patent application or need assistance drafting NDAs or navigating public disclosures, feel free to reach out to our legal team for guidance tailored to your situation. Go to https://long.law/intake to book a free consultation.