“PATENT PENDING”: WHEN A PATENT BECOMES A POWERFUL ADVERTISING TOOL

The reasoning for obtaining a patent can be diverse. The main one, of course, is to get exclusive rights that can lead to an entrepreneurial activity, either by the applicant theirself or by a licensee, but there might be other goals: improving one’s  resume,  one’s ego, pride, etc.

Anyway, once a patent is granted or a patent application is filed, why not advertise it along with the product? On the one hand, it warns competitors not to copy the product, since it lets them know that a possible infringement of the patent will bring about “consequences”, on the other hand in most societies the adjective “patented” surrounds  a product or procedure with a halo of prestige. Given the lack of knowledge about patents in some societies, such as in the Spanish one, a large part of the population regards the granting of a patent as a quality certificate, when actually a granted patent only guarantees compliance with patentability requirements, sufficiency of disclosure and some formal requirements, and with some caveats (most patent laws explicitly state that patents are granted with no State guarantee of their validity).

Therefore, it is not uncommon to come upon advertisements where “patented product” or “patented formula” is included:

It is in the USA, always a reference when talking about patents given the omnipresence of patents in its culture, where the marking of a product with patent or a patent application number has become a commonplace practice. Thus, the expression “patent pending” has become not only a cultural symbol but the “icon” when it comes to patents. In the TV cartoon series “The whacky races” there was a character whose name was “profesor Pat. Pending”.  There was also another inventor known as “Patent Pending” in the  Batman TV series of the 60’s. The renowned science fiction British author Arthur C. Clarke wrote a short story entitled “Patent Pending” about which I posted a review in the blog of the OEPM (Spanish Patent and Trademark Office” (in Spanish) some years ago.

In the USA there is even some regulation on marking of products with patent or patent application numbers:

“A patentee who makes or sells patented articles, or a person who does so for or under the patentee is required to mark the articles with the word “patent” and the number of the patent. The penalty for failure to mark is that the patentee may not recover damages from an infringer unless the infringer was duly notified of the infringement and continued to infringe after the notice.”

“The marking of an article as patented when it is not in fact patented is against the law and subjects the offender to a penalty. Some persons mark articles sold with the terms “Patent Applied For” or “Patent Pending.” These phrases have no legal effect, but only give information that an application for patent has been filed in the USPTO. The protection afforded by a patent does not start until the actual grant of the patent. False use of these phrases or their equivalent is prohibited.”

The use of plates to indicate that a product is patented has been common since the first years of the patent system and some of those plates have become coveted objects for collectors.

Anywhere you can stumble upon one of those plates, like this one which refers to a patent owned by the Swedish Company Dalén,  founded  by the Swedish Nobel Prize winner Nils Gustaf Dalén, that can be found in a lighthouse located in Nueva Palmira (Uruguay).

Some of these “patent plates” can be really weird…… like this one, placed on an Escher Wyss turbine regulator, located in the “Seira hydroelectric power plant” (Huesca – Spain): “patented in most civilized countries”. The manufacturer or distributor, seemed to have no doubts about what civilized countries meant. Undoubtedly, it is a very subjective concept. Nowadays it would not be politically correct to publish something like that…..

It is always pleasant to stumble on one of these plates:

Leopoldo Belda Soriano

En español

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