Meaning of "patent pending" and possibility of patenting first

Patent pending simply means that a patent application has been accepted by the patent office. The patent code requires an invention to be useful and novel (among other requirements) in order to obtain a patent. The useful requirement can be satisfied with a new and useful process, machine, manufacture, or composition of matter, or a new and useful improvement to a process, machine, manufacture, or composition of matter. The novel requirement is a bit more complicated, but your patent can be rejected (or later invalidated) if one of your competitors filed for a patent on the same invention first. If your competitor’s patent application is already published, you can discover their invention and determine if you have something that is different or improves the invention they disclosed. Otherwise, you are taking a chance that your invention will be viewed as different or an improvement over their disclosed technology. It is also important to take their product into account as well since products currently for sale also count as inventions prior to your patent application.

"Patent pending" means that the entity, having "patent pending" on their product or literate or advertisement re the product, has filed a patent application for that particular product or technology. The patent has not as yet issued - hence, patent pending - meaning, again, a patent application for such product technology is on file and currently being prosecuted/examined by a patent examiner or getting ready for examination by a patent examiner. You may still get a patent on your independently developed product/technology if you can patentably distinguish your product/technology, not only from prior patents, known as prior art, but also from your competitor's patent application because his patent application disclosure will probably be relevant to the patent examiner when the patent examiner examines your patent application.

As Messrs. Winslow and Weinrieb have written, "patent pending" means that a patent application disclosing the something that's considered inventive about the product has been filed with a patent office somewhere in the world. If the competitor's patent application discloses and claims subject matter that meets the legal tests of patentability in the pertinent jurisdiction (e.g. U.S.A.) then it's likely they'll eventually (in the next few years) obtain a granted patent with legally enforceable claims.

If the patent application was filed within the preceding 18 months, then it's likely you'll have to guess what it says, i.e. teaches or discloses. After 18 months, most but not all U.S. patent applications are officially published, and become accessible via the Web (e.g. Google Patents). From that time onward, a patent attorney could help you prognosticate the likelihood of the competitor getting patent claims that could preclude your making, using, selling or importing your proposed product.

The answer to your specific question is different from what it would have been a few years ago. By the so-called America Invents Act, Congress amended U.S. patent law to change from a process that used to grant patents (more or less) to the "first person to invent" the subject matter into a process that henceforth grants patents to the "first inventor to file" a patent application for the subject matter.

The law varies a bit from country to country as to whether a publicly sold competitive product would preclude your getting your own patent. And as I suggested above, it would also make a difference what the competitor's pending patent application discloses or teaches. So the answer to your question would have to be "it depends" on a lot of specifics. These specifics could best be reviewed and then used to generate actionable advice by a patent attorney you engage.

It means that they have purportedly filed a patent (design patent, provisional patent, or non-provisional patent) on some aspect of the technology. It depends on what aspect you are trying to patent vs. what they have applied for, but you would not be able to file a patent on something they have already filed for, or already placed in the market.