Alex is the co-founder and CEO of Patentext. He’s spent over a decade drafting patents for startups, unicorns like Uber and Dropbox, and everything in between. When he’s not obsessing over Patentext or running his climate tech-focused IP firm, he’s likely training for a triathlon or chasing a very fast border collie.
Most founders I work with already know they want "patent pending" in their pitch deck. That’s a good instinct: done right, it's one of the most credible signals you can put in front of investors and competitors at this stage.
What few realize, however, is that the phrase carries a specific legal definition, and that using it incorrectly exposes them to federal fines under 35 U.S.C. § 292, civil liability from competitors, and the kind of due diligence problem that shows up at the worst possible time.
After working with hundreds of early-stage founders across climate tech, SaaS, and deep tech, I've seen this go wrong in predictable ways. Here are the questions I hear most, and the answers I give them.
What does "patent pending" actually mean?
Patent pending means a patent application has been filed with the USPTO and is awaiting review. It does not mean the invention is protected, approved, or enforceable. During this pending period, you have no patent rights, which means you cannot stop a competitor from copying your product or sue for infringement.
What it does establish is a priority date, which is the date your application was filed. That date matters considerably: if a competitor later files on the same idea, your earlier filing can block them, even before your patent issues. You've also created public notice that a claim has been made, which has downstream relevance if you ever need to pursue damages once the patent grants.
When can you legally start using "patent pending" in your marketing?
You can legally start using “patent pending” the moment the USPTO acknowledges your filing. This means "we're going to file soon," "our attorney is drafting it," and "we have an invention disclosure written up" do not count.
Where can you use "patent pending"?
Once you have a filed application, you can use "patent pending" anywhere the specific invention is featured or described. Common placements:
- Product and packaging: "Patent Pending" or "Pat. Pending" directly on the product or packaging is the traditional approach and still the standard. If the product can't be physically marked (e.g., it's too small, is software, or is a process), marking the packaging or labeling is acceptable.
- Website and product pages: Product feature pages, technology overviews, footer notes on relevant pages; wherever the invention is shown or described.
- Pitch decks and investor materials: It’s standard practice to note on a technology or IP slide. Just make sure the underlying application is substantive enough to hold up to diligence.
- Press releases and announcements: If you're announcing a launch or a round, noting IP status is useful context.
One thing worth setting up early: virtual patent marking. Under 35 U.S.C. § 287(a), instead of printing a patent number directly on a product, you can mark with a URL that links to a page listing your pending applications or granted patents. It's particularly useful once you move from pending to granted, but worth building the infrastructure for now.
What happens if you falsely claim “patent pending”?
Under 35 U.S.C. § 292, it is a federal offense to mark a product with "patent pending" or "patent applied for" when no application has been filed or when an application was filed but is no longer pending. The statute provides for fines up to $500 per offense. And under the America Invents Act, any person who can demonstrate competitive harm from false marking can bring a civil claim for damages.
The three failure modes I see most often include:
- Using the phrase before filing anything: This is the most common trap. "Patent pending" is only legally accurate after the USPTO has acknowledged a filing.
- Continuing to use it after the application lapses or is abandoned. If you filed a provisional and let it expire without converting to a non-provisional within 12 months, you've lost patent-pending status. If your application is rejected and then abandoned, you've also lost it. In both cases, you're legally required to remove the phrase from every place it appears, including product, packaging, website, marketing collateral, and slide decks.
- Forgetting to update when the patent issues. Once the USPTO grants your patent, "patent pending" is no longer accurate. You need to update to "Patent No. [number]" or use a virtual marking URL. Leaving the old language up is technically a false marking violation, and it's an easy one to catch in due diligence.
The fine alone rarely ends a company; what does matter is that sophisticated acquirers and institutional investors run IP diligence. Finding inaccurate patent marking language, especially if it's been up for years, raises real questions about how carefully the IP portfolio has been managed overall.
How does “patent pending" affect fundraising?
I'll be honest about this, because there's a version of IP advice that significantly oversells what "patent pending" accomplishes in a fundraising context. Patent pending is a credibility signal, but it’s not the same as a granted patent, and experienced investors know the difference.
When a founder says "our technology is patent pending," the follow-up from any serious investor or their counsel is to ask for the application number, pull the filing from the USPTO's public database, and read it. If it hasn’t been published, they may ask to see a copy of the application or the claims. That's standard IP diligence, and it happens earlier in the process than most founders expect.
Investors are trying to see whether the disclosure actually describes the invention with enough depth and precision to support defensible claims. A well-drafted application that captures the full scope of the invention with real breadth, anticipation of design-arounds, and a coherent strategy behind it signals that someone who knows what they're doing filed this. That carries weight.
A provisional filed in a rush before demo day, with vague disclosure and thin claims, reads exactly like what it is. “Patent pending" doesn't obscure a weak application from someone who knows what they're looking for; it just delays the moment they find it.
The TL;DR is to that you should file something you'd be comfortable handing to an investor's patent counsel. If the application isn't strong enough to withstand that review, the phrase in your deck isn't doing what you think it is.
Check out our due diligence checklist of what investors expect to see in your IP.
Next steps
The whole point of "patent pending" in your marketing is the signal it sends to investors doing diligence, competitors assessing whether to enter your space, and customers deciding whether you're the real thing. That signal is only as strong as the application behind it.
Unfortunately, patents are expensive — a law firm may charge $15,000-$20,000+ for a non-provisional — and some founders try to solve that by filing a provisional themselves; after all, the USPTO doesn't review provisionals at the time of filing. The problem only surfaces a year later when the application turns out not to support the claims you actually need. But by then, you may have made public disclosures that foreclose your options internationally, or missed the window to capture a core part of the invention.
That’s why we built Patentext, an end-to-end AI-powered patent platform for founders. Before you file anything, you get a full IP strategy based on what you're inventing — so you know exactly what you're protecting and why it matters. From there, we use AI-powered drafting combined with review and filing by a registered patent agent. Long story short, you enjoy the same quality you'd get from a patent law firm at a fraction of the cost.
Join the waitlist today to lock in 25% off when we launch.
Frequently Asked Questions
Is "patent pending" the same as having a patent?
No. A granted patent gives you enforceable exclusivity — you can stop competitors from making, using, or selling your patented invention, and can sue for infringement or license your rights.
Patent pending status gives you none of that. Instead, it gives you a priority date and a public notice. It's the beginning of the process, not the outcome. The average time from filing to grant in the US is currently around 23–26 months, or longer in crowded technology areas like software and AI. During that window, "patent pending" is accurate and useful, but it isn't protection.
Can you sue someone for infringement while your patent is pending?
No. During the pending period, you have no enforceable patent rights. You cannot file an infringement suit, seek an injunction, or demand damages based on a pending application alone.
What you can do once the patent issues is potentially recover damages that reach back to the point when an infringer had actual notice of your pending application. This is called "provisional rights" under 35 U.S.C. § 154(d), and it applies when the issued patent claims are substantially identical to the published application claims. Proper marking during the pending period is part of establishing that notice.
Does "patent pending" scare off competitors?
Sometimes, but less than founders assume, and not in the way they typically expect.
A pending application is public information. Once your application is published (typically 18 months after the priority date), competitors can read exactly what you filed and start designing around it. The phrase signals that a claim has been made, but it doesn't tell competitors how strong that claim is, whether it will survive examination, or how broad the eventual claims might be.
That said, it does raise the cost of copying. A competitor who sees "patent pending" has to at least consider whether entering your space creates legal risk once the patent issues. That calculation changes their behavior at the margin, which is real value but not a guarantee.
Does a provisional patent count for patent pending status?
Yes. Filing a provisional application gives you patent pending status from the date of filing, the same as a non-provisional. This is one of the most common points of confusion we see among founders.
The provisional doesn't get examined; instead, the USPTO acknowledges it, assigns it an application number, and sets your priority date. Twelve months later, you either convert to a non-provisional (which does get examined) or the provisional expires and you lose your priority date. But during that 12-month window, "patent pending" is accurate and legal.
The caveat (and it's an important one) is that the provisional has to adequately describe the invention. Since the USPTO doesn't review provisionals for quality at the time of filing, founders sometimes treat them as a placeholder and rush through the disclosure. But when you convert to a non-provisional up to 12 months later, you can only claim priority to what was actually in the original provisional. Anything that wasn't described doesn't get your original filing date, and if you've made any public disclosures in the meantime, it may not be patentable at all.
This article is for informational purposes only and does not constitute legal advice. For guidance specific to your invention and situation, speak with a qualified patent professional.