Mitchell Law PLLC

What is a Provisional Patent Application?

A provisional patent application consists of a written description of your invention and drawings that together explain how to make and use your invention. The drawings may be informal. The provisional application is not examined by the Patent Office and functions as a placeholder for a subsequently filed utility patent application (also referred to as a regular application or a nonprovisional patent application). An inventor has one year from the filing date of the provisional application in which to file a utility patent application for the same invention, claiming the benefit of the filing date of the provisional application.

Because a provisional application requires the same level of detail as a utility application, it is typically not much quicker or less costly than a utility application. With limited time or financial resources, however, a provisional application may be better than no patent application. For example, a provisional application may be advantageous if the inventor plans to disclose the invention on short notice and lacks sufficient time to prepare a utility patent application. In that situation, the provisional application provides the inventor with an earlier filing date than might otherwise be obtained, provided that the subject matter claimed in the utility application was disclosed in the provisional application.

Provisional Patent Application Advantages

  • During the year before filing the utility application, you may assess whether your invention is commercially viable before committing to the higher cost of filing and pursuing the regular patent application.
  • A “Patent Pending” notice may be used on your invention or invention advertisements to deter competitors from copying your invention.
  • Avoid building and testing your invention. A filed provisional application establishes a date of constructive reduction to practice. The U.S. awards patents to whomever invents first. Constructive reduction to practice (filing of the provisional application) establishes a date of invention. An earlier filing date may be established by proving a “date of conception” and showing diligence in reducing the invention to practice (e.g., filing the provisional application).
  • Establish an official United States patent application filing date for the invention. Filing a provisional patent application gives you an official patent filing date. As explained above, the Patent Office awards patents to the first to invent, not the first to file a patent application. However, diligence from your date of conception to filing must be shown to retain the early invention date; complacency filing may result in forfeiture of your patent rights.

Provisional Application Disadvantages

  • Inaccuracy will undo your protection. A provisional application that fails to explain how to make and use the invention cannot be relied on for establishing an early filing date, proof of invention, or constructive reduction to practice.
  • Modifying your invention or adding new improvements (known as “new matter”) will force you to file a new provisional application or regular patent application. Modifying the manner of operation or adding any new technical information that was not in the provisional application inhibits reliance on the date of the provisional patent application for such new matter. A new provisional application that reflects these changes may be filed.
  • You must file foreign patent applications within a year. You must file patent applications in any country in which you seek protection within one year of the provisional patent application’s filing date.

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