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The Benefits of Use of "Patent Pending"

As the patent process can take years, one way to capitalize on your patent investment immediately is to notify the public that you have applied for a patent.

This notification can take the form of a"patent pending" notice applied to a product or product packaging, and is often effective as a marketing tool directed towards potential investors and consumers and as a way to deter competitors.

Patenting your invention is often an important step in commercializing it. However, as your patent application cannot be directly enforced through the courts until it is granted, the use of a patent pending notice is a way to begin capitalizing on your investment as soon as possible.

Reasons for Using a Patent Pending Notice

There are at least three reasons to notify the public that you have applied for a patent. Notification can be used as a marketing tool to indicate that your product is inventive, it can be used as a marketing tool to indicate that your company is inventive, and it can be used to deter potential competitors.

Indicating a New and Inventive Product

A patent pending notice can often be used as a marketing tool, directed at both potential investors and potential consumers, indicating that your product is inventive. A patent pending notice is often an effective way to tell potential consumers and investors that you consider some aspect or feature of your product inventive and important enough to invest in a patent to protect that aspect or feature. This can increase consumer engagement with your product, and potentially lead to greater sales performance.

Indicating an Inventive Company

A patent pending notice can also often be used as a marketing tool at a broader level, to indicate that you or your company are inventive. The notice associates your brand or company with inventiveness, and tells potential consumers and inventors that you are serious about investing in new products and in protecting your inventions.

Deterring Potential Competitors

If your product has been introduced to the commercial market and is doing well, there is a chance that others may attempt to replicate it to capitalize on the profit without going through the lengthy steps required to design and perfect your invention. "Patent pending" sends a signal to such potential threats that an essential aspect of your product may soon be legally protected and may place competitors in danger of legal action.

Where products are not labelled "patent pending" there may be no reason for a potential competitor to think anyone will object to copying. Notifying potential competitors that you are seeking a patent may convince them that the benefits of copying are not worth the risk of a damages award. Such a notification indicates that you are interested in protecting your intellectual property, and willing to take steps to do so. As such, marking your product "patent pending" can serve as a deterrent to copying by potential competitors.

Although you are not able to enforce a patent application through the courts until it has been granted, after it is granted the Canadian Patent Act allows you to seek reasonable compensation for the period between when your patent application was published and when your application was granted. A patent pending notice lets potential competitors know that they could be liable for such damages if they proceed to copy your invention, even though it is not yet patented.

Additionally, you can often maximize potential deterrence by seeking early publication of your patent application and by seeking expedited examination of your application.

Conclusion

Notifying the public of your patent application has many benefits. While it is important to balance benefits against potential risks, including the risk that the notice will motivate a competitor to design around your claimed invention, notification often allows a patent applicant to maximize the benefits of a patent application.

If you would like to discuss whether applying for a patent is right for you or your business, please contact us for a complimentary and confidential telephone appointment with a member of our team.