By: H.W. Pfabe | December 13, 2016

 


Sometimes you see things at the store, and they just bother you.

 

I’m not referring to rude shoppers or to products endorsed by celebrities whose only claim to fame is being a celebrity (though those bug me too). Since this is an Intellectual Property blog, I’m referring to Labeling and Marketing.

 

I recently came across a body and face wash, made by one of the leading (and largest) brands in the field. Looking at the back, right at the top, in very LARGE letters, it proudly proclaims “PATENT FILED TECHNOLOGY” (the picture is at the top of this article, edited to remove the brand name).

 

Why does this get under my skin? Because this means NOTHING.

 

Well, almost nothing.

 

 

WHY?

 

To begin with, and this is being nitpicky, I know: A PATENT does not get Filed. An APPLICATION gets filed.

 

So what’s the difference? Simple: While it may seem like a word was omitted just to make it sound better, it is actually misleading. It suggests, in the consumer’s mind, that the product is so advanced and innovative that there is a Patent on it. There is not. All there is is an application… an application that has a better than average chance of never being granted.

 

So, if it’s just an Application, what does that mean? Very little.

 

Just because there is an Application filed, doesn’t mean that it will be granted. It will be reviewed, comparing it to everything in the world that has already been disclosed. If someone else has already told the world about it (such as through a different Patent Application, or through an article, advertisement, speech, etc.), then no Patent will be granted. Similarly, if it is just an “obvious” variation of something already out there, or an “obvious” combination of existing things, achieving expected results, then no Patent is likely to be granted, either.

 

Worse yet, the Application may be a Provisional Application. Provisional Applications are just a placeholder. They give you a Priority Date (“FIRST!”), and let you say “PATENT PENDING”, leaving you 12 months within which to file a Non-Provisional (regular) Application. However, these NEVER GET REVIEWED.

 

You could, theoretically, file a Provisional Patent Application on something that has been already been around for 50 years, and then get to spend a year claiming “PATENT PENDING”. Not only that, but if you choose wording like “PATENT FILED TECHNOLOGY”, then you could claim that forever. Yes, they filed an Application for a Patent. Once. That’s it.

 

 

WHAT’S GOING ON HERE?

 

The company likely filed a Patent Application, and then used it for marketing. They want people to buy their product, believing that it is something so innovative and so game-changing, that they’re getting a Patent on it.

 

Not only does the bottle say “PATENT FILED TECHNOLOGY”, but the Amazon.com listing for the product makes the same claim. This listing has been up since at least January of 2013, and the blurbs on these pages are typically cut-and-pasted directly from the company’s marketing material. It’s interesting to note, however, that on the company’s website, they no longer make any patent claims about this product. The wording seems to have been changed.

 

What about the Patent Application itself? Well, first of all, there is no way to know what aspect of the product they were attempting to Patent. Could be a component, or a formulation, or how they manufactured it. The one Patent Application that I was able to find and seems close was filed in April of 2012, has been rejected multiple times, and is currently still under appeal.

 

However, if it was only a Provisional Patent Application, then that would have expired years ago, would NEVER become publicly visible (unless it was converted into a Non-Provisional Patent Application), might have had no chance in the world of being granted, and still lets them forever claim that they “FILED”.

 

 

TAKEAWAY:

 

When it comes to Patents, wording is VERY important. One wrong word, and your Patent might be virtually worthless (this happens A LOT).

 

I volunteer my time with a larger number of Small Businesses and Start-Ups, listening to MANY product pitches. I have lost count of the number of times someone asked “Is your product Patented?” and heard the business owner respond “Yes, it is.” when, it reality, all they had was a Provisional Application. A Provisional Application they wrote themselves. A Provisional Application that had nothing to do with any actual Patents.

 

There is a world of difference between “I have filed an Application” and “I have a Patent.”

 

Talking to Investors or Business Partners? That misrepresentation can be grounds for completely nullifying your entire Agreement. They’ll find out sooner or later (it’s called “due diligence”). Why risk your Business on it?

 

Do consumers matter? Remember, while the consumer doesn’t necessarily matter to Utility or Plant Patents, when it comes to things like Design Patents, Trademarks, and Unfair Business Practices, a lot of it comes down to the consumers. Is a consumer likely to be confused? To be misled? If yes, then there’s a problem. Potentially an expensive problem.

 

At the end of the day, though, I guess it just bothers me when companies try to mislead people.



Category: Patents 

Tags: Patent Filed Technology