Patent Provisional Application

Understanding Provisional Patent Applications

According to some schools of inventing a provisional patent application is a low-cost alternative or a preliminary step before filing for a non-provisional patent that gives one additional year of protection or grace - maybe enough time to test market your invention before investing in the cost of a regular patent.

What Is A Provisional Patent Application?

A provisional patent application allows filing without any formal patent claims, oath or declaration, or any information disclosure (prior art) statement
(1). It provides the means to establish an early effective filing date in a non-provisional patent application
(2). It also allows the term "Patent Pending" to be applied.
Provisional patent applications have been part of the patent process in the United States since 1995. Provisional applications are considered "provisional" because they are temporary. These applications are never examined by the U.S. Patent and Trademark Office, and they will never turn into actual granted patents. In order to obtain patent protection, the inventor who files a provisional application must file a regular (non-provisional) application within one year of the filing date of the provisional application. If a non-provisional patent application is not filed by then end of this year, the provisional application will simply expire.
If a non-provisional application is filed within that one year time period, that application can "claim the benefit" of the provisional application. This means that the non-provisional application will be treated as if it were filed on the filing date of the provisional application. Early filing dates may prove useful in helping to prove who was the first inventor of an invention. As the United States moves to a first to file system with the passage of the America Invents Act, early filing dates become even more important in cases where multiple parties are filing for patent protection on the same invention. In addition, early filing dates can help avoid losing patent rights through loss of novelty, as explained in the BitLaw section on patent requirements.
Use of provisional applications:
There are some circumstances when it is appropriate to file a provisional application. For instance, sometimes an application has to be filed before a full patent application can be written. When patent rights can be lost if an application is not filed on time, it is better to file a hastily drafted provisional patent application on time then to file a well prepared application after a critical bar date. In these circumstances, the initial draft should be filed as a provisional, since the fees are cheaper and the inventor does not want the patent office to examine this draft anyway. The provisional application should then be replaced with a more carefully drafted regular application claiming benefit of the provisional application.
Another legitimate use of provisional applications is to extend the life of a patent. In this case, a complete patent application is drafted in final form, and then submitted as a provisional application. At the end of the one year deadline, the regular non-provisional patent application is submitted. If the regular application matures into an issued patent, it will expire twenty years after the regular application filing date (or twenty-one years after the provisional filing date).


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