What is a patent application?

A patent application is a formal request submitted to the USPTO to seek protection for an invention through a utility or design patent. For utility patents, applicants can file either a provisional or a nonprovisional application. Both must include a written description and drawings that explain how to make and use the invention, satisfying the enablement requirement. In contrast, there is no option for a provisional design patent application. Design patent applications must include detailed drawings that illustrate the unique aesthetic features of the design.

To learn how to write a patent application, go to my Guide to Writing a Patent Application.

What are the types of patent applications?

Three different types of patent applications can be filed.  They are:

1. Utility patent applications,
2. Design patent applications, and
3. Plant patent application.

What are the differences between a provisional and nonprovisional patent application?

A utility patent application can be filed as either a provisional patent application (PPA) or a nonprovisional patent application (NPA). The key difference lies in the term “provisional.” A provisional application is a preliminary filing—it is never examined and cannot directly mature into a patent. In contrast, a nonprovisional application is not provisional. The NPA undergoes examination once the USPTO processes its backlog and reaches your application in the queue.

For both the provisional and nonprovisional applications, when the patent application is filed, the filing date becomes the priority date.  As between two inventors for the same invention, the one that has an earlier filing date will be awarded the patent.  That inventor has priority.  The one with the later filing date will not receive the patent.  In fact, the earlier filed patent application is now prior art to the later filed patent application.  For this reason, an earlier priority date is important.

Note that a provisional patent application, though it is never examined and expires automatically after one year, is still considered to be a patent application.  The patent application if it is granted will issue as a patent.

What are the parts of a utility patent application?

A complete utility patent application includes the following parts:

1. Specification (Required): A detailed written description explaining how to make and use the invention. It must fully describe the invention and disclose enough information to satisfy the enablement requirement. The specification may also include background information, a summary of the invention, and detailed descriptions of the invention’s features.
2. Drawings (Required): Visual representations of the invention, illustrating all aspects of the claimed subject matter. These drawings must meet USPTO requirements and should clearly show the invention’s structure, functionality, and any unique features.
3. Claims (Required for NPAs): Claims establish the scope of protection sought and define the specific elements of the invention that are protected by the patent. Claims must be clear, concise, and supported by the specification.
4. Application Data Sheet (ADS) (Required for NPAs): A form providing administrative and bibliographic information about the application. It includes the applicant’s name, correspondence address, and details of any priority claims or related applications.
5. Declaration or Oath of the Inventor(s): A signed statement in which the inventor(s) affirm that they are the original creators of the invention and acknowledge their duty to disclose relevant information to the USPTO.
6. Assignment (if applicable): If the invention has been assigned to another entity, such as a company or organization, a document detailing the assignment must be included.
7. Entity Status Claim (if applicable): A claim for small or micro entity status, which allows for reduced USPTO fees if the applicant qualifies.
8. Track 1 Request (Expedited Examination, if applicable): If the applicant is seeking faster examination, a Track 1 request must be filed with the appropriate fees and documents.

Important Notes

Failure to include any of these required parts may result in the USPTO issuing a Notice to File Missing Parts, leading to delays in the examination process. To avoid unnecessary complications, it is best practice to include all required components when initially submitting your application, ensuring a smooth and timely review process.

What Are the Parts of a Design Patent Application?

A complete design patent application includes the following parts:

1. Specification: A brief written description of the drawings. This typically includes the title of the design, a cross-reference to any related applications, and a description of the drawings. The specification may also include a single claim defining the design.
2. Drawings or Photographs: The most critical part of a design patent application. These must clearly and accurately depict the ornamental features of the design from multiple views (e.g., front, rear, top, bottom, left, right, and perspective). The drawings should follow USPTO guidelines, including high-quality black-and-white line drawings.
3. Claim: A single claim defining the ornamental design for the article as shown and described. Unlike utility patent claims, which focus on functionality, the claim in a design patent application is limited to the design’s aesthetic features.
4. Application Data Sheet (ADS): Provides bibliographic information about the application, such as the applicant’s name, correspondence address, and any priority claims.
5. Declaration or Oath of the Inventor(s): A signed statement by the inventor(s) affirming that they are the original creator(s) of the design.
6. Assignment (if applicable): If ownership of the design has been assigned to another party, the assignment document should be included.
7. Small or Micro Entity Status Claim (if applicable): A claim for reduced USPTO fees if the applicant qualifies as a small or micro entity.

Additional Notes on Design Patent Applications

• Publication: Unlike utility patent applications, design patent applications are not published as pre-grant publications. The application remains confidential until the design patent is issued.
• No Provisional Option: As noted earlier, there is no provisional option for design patent applications. All design patent applications must be filed as nonprovisional.

Failure to include any of the required parts may result in the USPTO issuing a Notice to File Missing Parts, delaying the examination process.

Can you file a design patent application as a provisional application?

You cannot file a design patent application as a nonprovisional patent application.  A nonprovisional design patent application does not exist.

A design patent application is also never published as a pre-grant publication.  The design patent application becomes publicly available only after it issues as a patent.

Plant patent applications are beyond the scope of this article.