I was asked by clients whom I had recently lodged a provisional patent application whether they should advertise and mark the product with the officially issued number or simply with the words, ‘patent pending‘.

I advised them they could legitimately represent their invention either way as it was now the subject of a valid provisional application. Personally, I prefer patent pending to actually putting down a number simply because it does not reveal where the application was filed and what sort of application it was.

The clients were also made aware that as the Australian provisional application lapses automatically after 12 months, they could only continue marking the product with patent pending if there is an international Patent Cooperation Treaty (PCT) application in place.

I should say the clients had secured an overseas customer and would be contemplating sales beyond Australia. If the clients were only thinking of completing the provisional application with an innovation or a standard patent application, the same condition would apply i.e. patent pending could only be used if either of those applications were on foot.

Importantly, they were advised that there are penalties for falsely claiming that there is existing patent protection which is considered misleading and deceptive in a commercial context.

If in due course the clients were to elect to continue with national phase applications under the PCT and get patents granted in various countries of interest, it may then be an advantage to apply those countries’ patent numbers where their products are being sold. Again, the same considerations apply i.e. there must be a valid and current patent in the relevant country before a patentee, can advertise the fact.


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Written By: Jaime Massang B.Sc (Hons) LLB.  || Aspides Patent and Trademark Attorneys.