South Africa: Patent Pending: What Does It Even Mean?

Last Updated: 21 May 2019
Article by Jaco Theunissen and Mathoto Masetla

Picture a scenario where you come across a product which is currently trending and children everywhere either have or want one, however, it is only being manufactured and sold by one entity. You purchase one of the products for yourself and as you tear off the packaging, you briefly note the words "patent pending", but without giving it any extra thought, you discard the packaging.

Soon thereafter you see an opportunity to meet the demand by manufacturing and selling the product yourself, and quickly realise that this was an inspired move, with your bank balance having never looked this good. Sometime later, while enjoying the spoils of your ingenuity, you receive a letter from an attorney demanding that you stop manufacturing and selling the invention, as it is infringing their client's patent. They also mention something about a possible claim for damages for infringing a granted patent, should you persist with your infringing activities. In a cold sweat you recall reading the words "patent pending" but still don't really comprehend what those words actually meant.

A patent is a type of intellectual property that is granted to the inventor of a new invention which is novel, inventive and capable of being used in trade or industry. A patent, once granted, gives the owner the right to exclude others from making, using, exercising, disposing, offering to dispose, or importing the invention protected under the patent in the territory in which the patent is registered.

Most of us will have read the words "Patent pending" somewhere on a newly launched product or its packaging, and may have even jokingly used the term around the braai to refer to your custom-made-ultimate-meat-turning-charcoal-grabbing tool, but it seems that few people really understand the meaning of the words "patent pending", and most are unsure if it has any legal effect at all.

The dictionary meaning of pending means awaiting a decision or settlement. It can therefore be said that patent pending refers to a patent application which has been filed, but the decision to grant the patent has not yet been made by the applicable patent office.

The Patents Act 57 of 1978 (the Act) is silent on the effect or necessity of indicating the words "patent pending" on any article which is the subject matter of a patent application. Section 66 of the Act, however, stipulates that marking an article with the word "patent", "patented" or any other word(s) (such as "patent pending") will not be deemed to constitute notice of the existence of a patent, unless it is accompanied by the official patent number. It further stipulates that any representation that a product is patented, without disclosing the patent number, will prevent the patent owner from claiming damages from the person having infringed the patent.

It follows that a patent application only reserves the rights to a patent, and that nothing but a granted patent will be enforceable against third parties. This ultimately means that the words "patent pending" has no legal effect, but that does not mean that the indication thereof is entirely without merit.

The patent application procedure differs from one country to the next, but generally the patent authority of a particular country or region must determine if the invention in respect of which the patent is being applied for satisfies the patentability requirements of that specific territory. It is entirely feasible that a product which is currently available in the market may infringe a patent which was only granted after the product was made available, but which patent was applied for at an earlier date than the date when the product was launched, and was thus pending at the time when the (now infringing) product was launched. It has therefore become customary for the words "patent pending' to be applied to products or packaging in respect of which patent protection has been applied for, but where the grant of the patent is still pending. The reason for this is to advise customers, competitors and would be infringers of the fact that the rights to a patent have been reserved, and is done to deter potential infringers from spending time, money and effort in making products during the patent application procedure which would possibly infringe the patent, once granted.

It is therefore imperative to do your research before launching a new product in the market, as the product may not only infringe a granted patent, but also a patent that is to be granted in future, but is still in the application stage. It is obviously also quite possible that your product may qualify for patent protection, provided that it satisfies the patentability requirements, but that is an entirely different topic and discussion.

A patent attorney will be able to advise you not only on whether or not your product is patentable, but also if your product could be infringing granted patents, which infringement could potentially expose you to costly patent infringement proceedings and a significant claim for damages. This is a text book case where doing your homework beforehand could not only empower you on your way to making millions, but also protect you from potential liability for substantially more.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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