Under 37 CFR § 1.103(d), on request of the applicant, the U.S. Patent Office may grant a deferral of examination for a period not extending beyond three years from the earliest filing date for which a benefit is claimed. A request for deferral of examination under this paragraph must include the publication fee set forth in § 1.18(d) and the processing fee set forth in § 1.17(i). However, a request for deferral of examination will not be granted unless:
- The application is an original utility or plant application filed under § 1.53(b) or resulting from entry of an international application into the national stage after compliance with § 1.495;
- The applicant has not filed a nonpublication request under § 1.213(a), or has filed a request under § 1.213(b) to rescind a previously filed nonpublication request;
- The application is in condition for publication as provided in § 1.211(c); and
- The Office has not issued either an Office action under 35 U.S.C. 132 or a notice of allowance under 35 U.S.C. 151.
Of course, during the deferral you can also mark your product as "patent pending" in order to strike fear in hearts of potential copiers, regardless of what scope of protection that you may (or may not) be able to obtain.