What is a Provisional Patent Application?

Thoughts to Paper - February 10, 2022

A provisional patent application is a great tool to temporarily protect your invention with the US Patent Office, but it is useful only if you also file a non-provisional patent application within 12 months. If not used properly, the provisional patent application will not protect your invention.

Secure a Filing Date with the US Patent Office

A provisional patent application gets you a filing date with the Patent Office, but that date is saved for only 12 months. Before the 12 months is up, you must file a non-provisional patent application if you want to keep the provisional patent application date. For example, if you file a provisional patent application on 2/1/2010, that date is saved for 1 year until 2/1/2011. To keep the 2/1/2020 date, you need to file a non-provisional patent application by 2/1/2021. If you do not, you will lose the 2/1/2020 date which could have consequences.

Let’s look at an example:

You file a provisional patent application: 2/1/2010
Competitor files a patent application: 3/1/2010
Your provisional patent application expires 2/1/2011

In this example, you see your filing date of 2/1/2010 is before your competitor’s filing date of 3/1/2010 so you are ahead of him in line to try and get a patent. But remember, you get to keep the 2/1/2010 date only if you file a non-provisional patent application before the provisional patent application expires on 2/1/2011. If you do not, then you lose the 2/1/2010 date and it disappears, then your competitor will be in front of you with his 3/1/2010 date.

It is therefore important to file the non-provisional patent application within 12 months of the provisional patent application filing so you keep the provisional patent application date.

Lower Cost Patent Filing Date

A provisional patent application is less expensive to file than a non-provisional patent application, making it more affordable to get a patent application filed. However, remember that a provisional patent application is useful only if you file a non-provisional patent application within 12 months. So, you actually end up spending more because you need to file both a provisional patent application and then a non-provisional patent application. If you have the budget to file a non-provisional patent application up front, you can decide to skip the provisional patent application. However, if you need time to raise funds to file a non-provisional patent application, you can decide to file a provisional patent application first. Just remember to file a non-provisional patent application before your provisional patent application expires in 12 months.

Quicker to File Patent Application

A provisional patent application can usually be filed quicker than a non-provisional patent application because there are fewer requirements for filing. If you need to quickly file a patent application before showing the invention to the public, a provisional patent application is a good tool. Just remember you still must file the non-provisional patent application before the provisional patent application expires in 12 months.

Get “Patent Pending” Status

A provisional patent application gets you “patent pending” status which you can label on your invention. Remember, it only lasts for 12 months. To keep “patent pending” status, you need to file a non-provisional patent application before the provisional patent application expires in 12 months.

No Patent Rights Yet

A provisional patent application is not a patent yet, so you cannot stop others from making your invention yet. To stop others from making your invention, you need to file a non-provisional patent application and get it approved by the US Patent Office. The provisional patent application is a 12-month temporary save the date. Remember to file a non-provisional patent application before the provisional patent application expires in 12 months.

International Filing Date

A provisional patent application gets you a filing date with the US Patent Office, but that date can also be used by most countries in the world. For example, before the provisional patent application expires 12 months after you file it, you could file a Canada patent application in Canada and it would also get to use the date saved by your US provisional patent application. Again remember, the provisional patent application only lasts for 12 months. So, before it expires, you need to file non-provisional patent applications in each country and they can all use the date saved by your provisional patent application.

Not Examined for Patentability

A provisional patent application is not looked at by the patent office in the sense that they will tell you if your invention deserves a patent. That is done only after you file a non-provisional patent application. Remember that the provisional patent application is essentially a “save the date” for 12 months. To use it properly you must file a non-provisional patent application within 12 months after filing the provisional patent application so that you keep you place in line with the US Patent Office.