Supplement Ad Claims of the Month: “Patented” & “Patent Pending”

Posted By elissa on Jun 18, 2008 | 3 comments

I see these terms used in a lot of dietary supplement ads, especially “patent pending.”  The implicit assumption is – if a patent has been applied for or granted – it must be effective.

Not so.  A patent is simply a legally-recognized grant of property rights over an invention,  formula, or design.  According to the United States Patent and Trademark Office (USPTO), a patent represents:

• “…the grant of a property right to the inventor, issued by the United States Patent and Trademark Office.”
• “…the right to exclude others from making, using, offering for sale, or selling the invention in the United States or importing the invention into the United States.”

There are only really two major criteria that must be met to be eligible for a patent:

• “…it must be new as defined in the patent law…”
• it must be “useful” – in the sense that the invention is intended to serve a useful purpose.

In other words, a patent is simply a legal instrument the patent holder(s) can use to keep others from marketing “copycat” versions of his/her/their work for a specified period of time (typically 20 years).

That’s all there really is to it.  The patent holder is not required to prove that their process or product actually works to obtain a patent.  Likewise, all “patent pending” means is that a patent application is on file with the USPTO.  It isn’t a guarantee that a patent will even be awarded!

Often, when I see one of these terms in an ad, I’ll amble on over to the USPTO and do a search.  This can be a very interesting experience…I’ve found all sorts of easily disproved claims in patents, such as the one discussed in my Kre-Alkalyn review.  Just goes to show you that claims don’t need to be based on evidence to obtain a patent.

So, if you see the words “patented” or “patent pending” – you’d be wise to let your eyes just slide over them: they mean exactly nothing when it comes to proving that a product actually works.