Patent marking provides notice to the public, especially competitors, that a product is patented, serving as a deterrent to potential infringers and enhancing the ability to recover damages in infringement cases. It also acts as a marketing tool, suggesting innovation and product value.

What does “patented” mean?

You should only use the term “patented” on your product once your patent application has been officially granted. A granted patent provides you the exclusive right to prevent others from making, using, selling, importing, or distributing the patented invention. This “negative right” means the patent owner can stop others from exploiting the invention commercially in territories where the patent is in force.

What does patent pending mean?

If your patent application has been filed but not yet granted, you can use the phrase “patent pending”. This serves as a warning to competitors that you’re in the process of securing patent protection and could take legal action if they copy your invention and your application proceeds to grant.

While marking your product “patent pending” can be useful in deterring competitors, you can also send a warning letter if you become aware that someone is using your invention, and if your patent is eventually granted, you may be able to claim compensation from the date the application was made public.

Important considerations

• You cannot say “patented” until a patent has been granted.
• You cannot say “patent pending” unless you’ve actually filed a patent application.
• Using these terms incorrectly can be misleading and may lead to legal action and financial penalties.

Include your patent number

Once your patent is granted, it’s advisable to display the patent number along with the word “patented.” The number may be provided on the product itself or may be made accessible online, e.g. on a company’s website. In doing so, it’s much more difficult for a competitor to claim that they infringed the patent innocently which will increase your chances of being able to claim full damages. In some countries marking is compulsory to be able to obtain certain forms of relief for patent infringement.

Where a product is protected by multiple rights and/or marketed in several jurisdictions appropriately marking the product or packaging can be complex.

Please contact us for advice on correctly marking your products and services.