Patent pending: Legal claim or tasty beverage?

| Nov 4, 2020 | Industry Patents And Infringement |

In normal circumstances, the phrase “patent pending” is used to let the public know that an inventor has filed a patent application. But there’s a frosty, flavorful exception to that definition from Minnesota’s Twin Cities: a St. Paul brewery has teamed up with a Minneapolis museum to celebrate innovation with a cold beer called Patent Pending.

St. Paul’s Blackstack Brewing concocted Patent Pending (it has “a fruity tropical smell with a slight candy taste,” according to one reviewer) specifically for the Bakken Museum’s “Spark” exhibit. The museum says Spark is a celebration of the critical moment of inspiration – the spark – “that transforms someone from a consumer into a creator.”

For those who have experienced the spark and then put in the considerable time and work needed to convert the idea into a marketable product or process, the words “patent pending” show the public that the inventor has taken the next step and applied for a patent that has not yet been granted.

But the legal designation “patent pending” is more than a public notice. It’s also meant to alert businesses and inventors – especially potential patent infringers – that a legal claim has been staked and that those who copy the product or process could be liable for damages after a patent has been issued. One possible outcome for the copier is that their copycat items could be seized.

Because the patent-pending notice establishes a priority date – the date the patent application was filed – another possible outcome for someone who infringes on the patent is that they could be held liable for back-dated royalties.

It should be noted that the holder of the provisional patent cannot sue an infringer until the patent has been granted and, that after the patent’s been granted, the “patent pending” phrase can no longer be used.