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You are here: Home / Patent Applications / What is a provisional patent application?

What is a provisional patent application?

June 26, 2022 by James Yang

A provisional patent application establishes a priority date for the invention described and shown in the specification and drawings.  The invention is patent pending and your product can be labeled as patent pending.  You can have the confidence in knowing that anyone that files a patent application after you cannot steal your invention away from you.  

You must file a corresponding nonprovisional patent application within 12 months from the filing date in order to maintain the priority date of the provisional patent application.  Otherwise, you will lose your priority date.

The provisional patent application is never examined and never matures into a patent.

Why do you need a provisional patent application?

A provisional patent application establishes a priority date. After the provisional patent application is filed, the invention is patent pending.  You can now safely market your idea to others because anything that others would file based on your marketing efforts would be after the filing date of your provisional patent application.

A nonprovisional patent application establishes a priority date.  Read my article on “Should you file a provisional or nonprovisional patent application?“

How much does a provisional patent application cost?

A provisional patent application is a lower-cost alternative to a nonprovisional patent application.  The cost of the provisional patent application is slightly less than the cost of a nonprovisional patent application.  I generally explain that it is about 20% less than the cost of the nonprovisional patent application. 

The patent office fee is $140 for a provisional versus $830 for a nonprovisional patent application.  The drawings can be hand-drawn.  No claims are required.  No Oath or declaration is required as well.  

A claim and computer-drawn drawings are not required for the provisional patent application.  

But, a provisional patent application is not a cheap option compared to the nonprovisional patent application as many on the internet claim it to be.

You need to still describe the invention in such a way to enable the full scope of the claim you want to submit later on in the nonprovisional patent application.  Otherwise, you cannot assert the earlier priority date of the provisional patent application.

The USPTO states:

  • It is recommended that the disclosure of the invention in the provisional application be as complete as possible.
  • In order to obtain the benefit of the filing date of a provisional application, the claimed subject matter in the later-filed nonprovisional application must have support in the provisional application.

When does a provisional patent application expire?

A provisional patent application expires 12 months after the filing date.  It happens automatically and cannot be extended.  The Patent Office will not notify you that the provisional patent application will expire.  It is your responsibility to keep the invention pending by filing a nonprovisional patent application within the 12-month period and claiming priority back to the provisional patent application.

You cannot refile a second provisional patent application and claim priority back to the first provisional patent application.  You must file a nonprovisional patent application.

 

What are the benefits of a provisional patent application?

The provisional patent application allows inventors to more quickly establish patent pendency for their inventions because of the lower requirements compared to a nonprovisional patent application.

Additionally, because of the lowered requirements, the provisional patent application has a lower cost than a nonprovisional patent application.  

Lastly, the provisional patent application does not reduce the patent term of the patent.  The patent will expire 20 years from the filing date of the first nonprovisional patent application, not the filing date of the provisional patent application.

What are the limitations of a provisional patent application?

A provisional patent application is not a provisional patent.  There is no such thing as a provisional patent.

A provisional patent application never matures into a patent.

A provisional patent application is never examined. 

A provisional patent application only remains pending for 12 months.  After the 12 month time frame, the provisional patent application expires and cannot be extended.

How do you prepare and file a provisional patent application?

A provisional patent application is a written description (i.e., text and drawings) that describe the invention.  More particularly, the written description and drawings must enable one to make and use the invention.  The inventor must explain the design constraints and the recipe of how to utility invention. 

Here are 8 tips in writing a patent application.  

Writing Tip #1: How to write an application with the broadest possible protection (without breaking the bank) (Chapter 12)
Writing Tip #2: Be explicit. Don’t rely on inferences made in the patent application
Writing Tip #3: Using the word “may” versus “is”
Writing Tip #4: Preferred embodiments and using the word “substantial”
Writing Tip #5: Do not use the word, “invention”
Writing Tip #6: Suboptimal embodiments
Writing Tip #7: Ranges
Writing Tip #8: Software Inventions

You can find many books on how to write a patent application on Amazon.com.  

Submit the written description and the drawings along with a provisional patent application cover sheet to the United States Patent and Trademark Office. 

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Author

James Yang is a patent attorney. For more than 16 years, James Yang has been representing clients to secure patent protection for their inventions and register trademarks to protect their brands. If you need help, call him at (949) 433-0900. Read More…

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