Why do inventors file a provisional patent application? Do you have to file a provisional patent application to start the patent application process? What are the advantages of filing a provisional patent application? To answer these questions, let’s start with what exactly a provisional patent application is.
What is a Provisional Patent Application?
A provisional patent application is a temporary patent application filed to the US Patent & Trademark Office to save your place in line. Let’s say you want to file a patent application and try to get a patent, but you’re not quite ready yet. You might be raising money to pay for the legal fees to file a patent application, or you might be putting the final tweaks on your invention. The provisional patent application is like a pre-filing to the eventual full patent application filing. You file the provisional patent application to save a date with the patent office. You can then use that saved date within 12 months.
For example, let’s say you file a provisional patent application January 1, 2023, that date is saved for 12 months. So long as you file a nonprovisional patent application before January 1, 2024, the nonprovisional patent application can use the 1/1/2023 date saved by the provisional patent application. It will be just like you had filed the nonprovisional patent application on January 1, 2023. If a competitor filed a patent application on February 1, 2023, you would still be in front of that competitor in line with the patent office since you get to backdate to January 1, 2023. The patent office will give you the first chance to get a patent before your competitor because you have an earlier date than the competitor.
What are the Advantages of a Provisional Patent Application?
1. Fast Filing
A provisional patent application can be filed faster than a nonprovisional patent application because a provisional patent application does not have as many requirements to file when compared to a nonprovisional patent application. If you have a trade show to go to next week, provisional patent application may be the way to go to quickly file an application with the patent office before you show your invention to the public. Then, you can work with your patent attorney or patent agent on the nonprovisional patent application before the provisional patent application expires.
2. Less Expensive
Because a provisional patent application has fewer requirements to file than a nonprovisional patent application, it usually costs less in legal fees to file. This may make it more affordable to you if you are a startup, so you can at least temporarily protect the invention for 12 months while you raise funds to file the nonprovisional patent application.
3. Buys Time
You may need time to raise funds. Or you may need time to finalize your invention with your engineering team. Or you may use the 12 months you get from filing a provisional patent application to try and sell your product and see how well it sells before making the leap to filing the nonprovisional patent application. Remember, the nonprovisional patent application is what you need to eventually file to ask the patent office for a 20-year patent, that’s the end goal. The provisional patent application simply buys you 12 months of time before you need to file the nonprovisional patent application. However, if you don’t need the extra 12 months of time that the provisional patent application buys you, you can certainly skip the provisional patent application and go straight to a nonprovisional patent application. See also: Provisional Patent Application vs. Nonprovisional Patent Application.
4. “Patent Pending” Status
With a provisional patent application, you can legally label your products as “patent pending”. This status tells others that you have a patent application already in the works, so they should think twice before filing their own patent application for the same invention. The phrase “patent pending” also tells others that if they want to make your invention, they should come talk to you since you plan to eventually get a patent from the patent office.
5. Filing Date Secured
Most important, the provisional patent application secures a “filing date”, which is the date you file the provisional patent application with the patent office. Securing a filing date is important in patenting because the United States uses a “first to file” system. That means whoever files a patent application first is first in line to get a patent. Just remember, a provisional patent application is only temporary for 12 months. You must file a nonprovisional patent application within that 12-month period otherwise the date saved by your provisional patent application will disappear.
If you lose the date saved by your provisional patent application, a competitor who previously had a date later than you may then become in front of you since you lost your earlier date. It’s like you got out of line at the patent office! Make sure to file a nonprovisional patent application before the 12 months of the provisional patent application are up. Also, make sure you start the nonprovisional patent application with your patent attorney or patent agent at least 2 months before the provisional patent application expires. We need time to write the patent application.
