Patent Pending: A Strategic Guide

Patent pending is a strategic tool that inventors can use to maximize the value of their intellectual property. Here, we examine the mechanisms for obtaining patent pending status, the various ways it can be lost, and the implications for intellectual property practice in AI, robotics, and semiconductor manufacturing. 

Understanding Patent Pending Status

Filing any patent application at the United States Patent and Trademark Office (USPTO) will grant your invention patent pending status. Patent pending means you have filed a patent application for your invention with the USPTO, which has not been allowed or abandoned. This easily achievable status can be strategically attained to establish a priority date under the U.S. "first to file" system, enable a rapid response to a competitor’s rival product, and deter copycat products.

The U.S. "first to file" system is the legal framework that determines who has the right to a patent when multiple inventors claim the same invention. Simply put, the invention with the earlier filing date claims priority and can be used to disqualify any later filed patents. It is critical to note that the strategic benefits associated with gaining patent pending status for an invention do not include legally enforceable rights. Patent rights only become available after the patent application is granted.

Ways to Obtain Patent Pending Status

Provisional Patents

Inventors should think strategically about the type of patent application they file when pursuing patent pending status. Those seeking to achieve patent pending status quickly can file a provisional patent application (PPA). The selling points for the PPA are that it is not examined, has minimal filing requirements, and can be filed at a low cost.

Filing a PPA enables an inventor to claim an early priority date while satisfying relatively few requirements. The PPA expires 12 months after filing and does not grant patent rights on its own ^[1]. While provisional applications can be converted to non-provisional applications, this practice reduces patent term. Instead, practitioners should file new non-provisional applications claiming priority to the provisional filing.

Non-provisional patents

Another method for achieving patent pending status is to file a non-provisional application for your invention. Non-provisional applications, such as utility, design, and plant, grant patent pending status. The key distinction from the PPA is that non-provisional patent applications can eventually mature into patents that grant enforceable patent rights. A non-provisional application can claim the priority date of an earlier-filed application, including a PPA ^[2]. Inventors can obtain the maximum pendency term by strategically filing non-provisional applications that claim PPA. This can give inventors time to fundraise, gauge product market fit, and assess the competitive landscape.

Non-provisional applications are examined, and therefore, the pending patent status gained from these applications has no definite expiration date. These applications retain their pending patent status until the moment they are abandoned or allowed. Inventors can leverage the extended pendency granted by a non-provisional application by filing child patent applications to cover new or modified versions of their original idea.

Child patent applications

A child application is a non-provisional application that claims the priority date of an earlier filed patent application (the parent application). Critically, a child application must be filed while the parent application is in patent pending status ^[3]. A key feature of the child application is that it enables innovators to cover a related or underdeveloped aspect of the parent application. Inventors in rapidly evolving technologies like AI and semiconductors can create a patent family by applying for successive child patents, thereby extending the scope of their original patent. Maintaining the strategic pendency of at least one child patent enables innovators to develop a patent portfolio capable of responding to market forces and technological advancement.

International patents

For inventors seeking worldwide protection, the Patent Cooperation Treaty (PCT) provides a streamlined approach. A single PCT application can establish patent pending status in up to 158 contracting states^[4].

Ways Patent Pending Status Can Be Lost

Patent pending status automatically ends when your patent application is allowed or abandoned. Allowed patents grant enforceable patent rights. Abandoned patents are no longer being considered for patent rights. Inventors must ensure their application isn’t unintentionally abandoned, as this could result in the permanent loss of patent rights. 

A patent application can become abandoned if the patent owner fails to respond promptly to USPTO communications or fails to pay necessary fees. Inventors must maintain robust tracking systems to ensure these administrative hurdles do not disqualify an otherwise allowable patent application.

Inventors may choose to abandon a patent application voluntarily. Strategic abandonment can be used to reduce prosecution costs or prevent an application from being published ^[5].

Preventing publication through strategic abandonment also prevents competitors from accessing detailed technical specifications, alternative embodiments, and the prosecution history that would otherwise become public through publication ^[6]. This practice can be leveraged when pursuing trade secret protection as an alternative to patent protection. Inventors must weigh the value of patent protection against that of trade secret protection. For innovations in rapidly evolving fields like AI and robotics, the 20-year patent term may exceed the commercial lifespan of the technology, making trade secret protection a better option.

Strategic Considerations for AI, Robotics, and Semiconductor Clients

Trade secret preservation is an important strategic benefit of abandonment before publication. Once an application is published, the disclosed information enters the public domain and cannot be reclaimed as a trade secret.  This is particularly valuable for clients in AI and machine learning, where algorithmic innovations may derive greater long-term value from trade secret protection than from the limited 20-year patent monopoly. In semiconductor manufacturing, where design-around strategies are common, maintaining secrecy can provide sustained competitive advantages.

Conclusion

Patent pending status represents a critical phase in intellectual property protection, requiring careful management to maximize strategic value while avoiding costly mistakes. The various mechanisms for obtaining this status—provisional applications, non-provisional applications, and international PCT filings—each offer distinct advantages and limitations.

The risk of losing patent pending status through abandonment, expiration, or legal violations necessitates robust portfolio management systems and compliance procedures. For intellectual property practitioners in AI, robotics, and semiconductor manufacturing, understanding these dynamics is essential for providing effective counsel and protecting client innovations.

Sources

1. U.S. Patent & Trademark Office, Provisional Application for Patent, USPTO.GOV, https://www.uspto.gov/patents/basics/apply/provisional-application (last visited Sept. 19, 2025).

2. U.S. Patent & Trademark Office, Utility Patents, USPTO.GOV, https://www.uspto.gov/patents/basics/apply/utility-patent (last visited Sept. 19, 2025).

3. Manual of Patent Examining Procedure § 9020 app. R (Rev. 10.2023), available at https://www.uspto.gov/web/offices/pac/mpep/mpep-9020-appx-r.html.

4. World Intellectual Property Organization, PCT - The International Patent System, WIPO.INT, https://www.wipo.int/en/web/pct-system (last visited Sept. 19, 2025).

5. Manual of Patent Examining Procedure § 1125 (Rev. 10.2023), available at https://www.uspto.gov/web/offices/pac/mpep/s1125.html.

6. Manual of Patent Examining Procedure § 711 (Rev. 10.2023), available at https://www.uspto.gov/web/offices/pac/mpep/s711.html.