USPTO SealWhen you file your patent application, you automatically achieve ‘patent pending’ status.  You can mark your product as ‘patent pending’ and use ‘patent pending’ in advertising and product packaging.  For some inventions, particularly consumer products, ‘patent pending’ status can be a valuable marketing tool and can help your product vie for attention in the marketplace.   When the patent application is finally issued or denied, you lose ‘patent pending’ status.  If maintaining ‘patent pending’ status is more important to you than receiving a decision from the PTO finally issuing or denying your patent, then deferred examination may be right for you.

Deferred examination is based on a little-used provision of U.S. patent law that allows the applicant to defer PTO examination of the patent application for three years from the earliest filing date of the application.  Since the PTO review time for patent applications commonly exceeds two years, deferred examination can extend ‘patent-pending’ status to more than five years from the date of filing.  Several requirements and limitations apply to deferred examination and are listed under 37 CFR §1.103(d).  The current deferred examination program has been used for fewer than 200 applications since its introduction in November, 2000, and the PTO is considering expanding the deferred examination program to help ease the application review burden.  For more information follow this or contact Robert Yarbrough.

–Robert J. Yarbrough, Esq.