Patent Pending in the UK

You are in UK. You have spent thousands of pounds on a UK or European patent application. How can you reap some return on this investment without suing someone?

The band "Patent Pending" taken by Jtdscape
The band “Patent Pending” taken by Jtdscape

One way you can do this is to show that you have applied for a UK or European patent application in your marketing material. You may want to tell the world that your product or service is new and innovative. You may also want to put some distance between yourself and your competitors.

In the UK can mark your product or service as “patent pending”, but this comes with some caveats:

  • It is an offence to mark your product or service as “patent pending” when you do not, in fact, have a UK or European patent application (see Section 111 of Patents Act 1977). To clarify, you will not have  a UK or European patent application if:
    • the obvious one: you have not filed a UK or European Patent Application; and
    • the slightly less obvious ones:
      • you have filed a first application outside of the UK or Europe and have not filed a priority-claiming UK or European patent application;
      • you have filed a International (PCT) Patent Application but have not entered the UK or European phases after 31 months; and
      • you have filed a UK or European Patent Application but it has been considered withdrawn or refused.
  • We now live in a global world. A web-based service is accessible from anywhere on the globe and many business ship worldwide. If you mark a web-site as “patent pending” when you have a UK or European Patent Application, someone viewing the site from outside the UK may assume you have a patent pending in their territory. This could get you into legal trouble. Hence, it is recommend to specify that you have a “UK patent pending” or a “European patent pending”. For a belts and braces approach you may wish to add the application number.

If something changes and you no longer have a UK or European patent application, you have a “reasonable” amount of time to change your marketing materials, product and/or website. As this is a bit woolly, and will vary for each case, it is recommended to instruct that information is changed within 3 months of notification of the change (e.g. after receiving an email from your patent attorneys saying that your application has been refused).

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