What is Patent Pending and how do we use the term “Patent Pending”?
Under Indian law (S.111 of the Indian Patents Act, 1970), in a patent infringement case where the defendant can prove that they are unaware of the patent or its application, there can be no claim for an account of profits and the damages are limited.
However, this is not applicable, when the product is marked with the word “patent” followed by its official number. The same may be used only on patents in force or applied for in India unless there is an accompanying description that the patent has been applied for obtained outside India.
- When an application is pending the product may be marked as “patent pending”.
- When it is granted, the product must be marked as “patented” along with the official number.
The use of this prevents casual innocent infringement, as well as arms the patent-holder against malicious infringement, where a claim may be made that the infringer was unaware of the patent.
Under S.120 of the Indian Patents Act, the use of the mark “patent pending” or “patented” or similar terminology where no application has been made or granted, or falsely or with intent to defraud or misrepresent the patent status, is an offense punishable with a fine up to 1 lakh rupees.
It must be noted that the rights vest upon the application and they are increased by the use of the marks. However, a suit for infringement may be filed only once the patent is granted.
