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At what point in your submision is your idea considered patent pending/

neillizotte's Avatar

Hello, I would like to know at what point in the patent process is your idea considered patent pending?

I get asked every time I submit and an idea for patenting and very sorry, but not sure what to enter ifor this question.

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kabuj's Avataree_badge

TECHNICALLY, a patent application is "patent pending" as soon as you formally file the application. In actuallity, until you get a formal acknowledgement of receipt from the USPTO it's not really patent pending (it must be sent and received). In other words, if you file, but they never receive it for some reason, in reality, it's not patent pending.Filing online resolves this issue immediately since you get an immediate receipt. My two cents anyway. Best of luck

Darlene Batrowny
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taterdog1's Avatargold

  FYI/ If I remember correctly, a patent pending app expires after one year if you have not moved forward to a finalized patent/ I do not believe you can do a patent app more than once on the same idea. Double check these facts but i believe you will find them to be correct. TY

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kabuj's Avataree_badge

Barry is correct about the 1 year expiration. More specifically, You have one year after public disclosure and or filing a provisional patent application (PPA) to file a regular (or non-provisional) patent application (RPA or NPA) or you will lose your right to claim "priority".. Note: If your invention was not publicly disclosed you can STILL file another NPA(s) or RPA. As always, I am not an attorney nor do I play one on TV. Do your due-diligence. Best of Luck!

Derrick James
Darlene Batrowny
barry ellard
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tboult's Avatargold

K J first post is correct.  Barry is correct.  And K J is close -- if not disclosed you can also file a second (or third or fourth)  PPA not  just a RPA or NPA.

  A provisional application is considered abandoned after 12 months.   A provisional is never published so if you have not publically disclosed the idea then you may file another provisional after the first is abandoned.   You can keep filing provisionals until 12months after the idea was disclosed.  Note selling the item, even if you don't describe how it is made, is considered a disclosure. 

If you file multiple provisionals because of temporal abandonment then file a non-provisional you can only claim the priority date of the most recent provisional that 12 months you can claim the last provisional as a priority date.

So you can “refile” a U.S. provisional patent application but it is not recommended because of the loss of your priority date for the first provisional application and the potential loss of some (or all) of your patent rights. Since your second provisional patent application cannot claim priority to your first provisional patent application’s filing date, if a third-party files a patent application before your second provisional filing date, the US switch to first-to-file means they will have priority.  

If you self-file you should readily know this or be spending time learning more from the USPTO or other material. If not your lawyer should be able to provide advice, though many will strongly urge you to file a regular application, because of the risk mentioned above -- and they will make more money if you file regular patent application so there is always a bit of self-serving conflict there.  

From a business point of view, if you cannot get enough interest in the 12months after the provisional to justify the full  patent filing, make sure to ask yourself if the idea is really worth a patent at all.  If you are doing the provisional so you can claim "patent pending" on a product and e.g. have met with manufacturing delays,  it might be worth it as just marketing play to gather more data and or delay until there is more money.  It is risky if the idea is really valuable but tasking measured risk is an essential part of innovation. 

If you are a regular inventor I highly recommend learning enough to file your own provisionals (cost <$200 if you are small,   <100 if you are considered micro entity) and its not very hard.  

I'm not a lawer, not been on TV nor have I've recently stayed at a holiday inn.  But I an a pro-se inventor (I've successfully done my own patents) and I teach businesses and intellectual property law.  

Nicolas C
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