The Provisional Patent | A Way To Reserve Rights
What is a Provisional Patent & How Are They Helpful?
A provisional patent grants patent-pending status to an invention. The application is optional and is submitted to allow the applicant additional time to improve the invention or conduct additional research while protecting the invention from being claimed by someone else for a year. Within that period of a year, the applicant must file a corresponding non-provisional application for review by the US Patent and Trademark Office (USPTO) to obtain protection and officially be granted a patent.
What’s the Difference Between a Provisional and a Non-Provisional Patent Application?
Although the provisional patent application does not need to meet all of the formalities required of a non-provisional application, the invention must be described in a manner just as specifically as if it had been filed in the non-provisional application. The provisional patent is not published and is not examined for registration. However, it is reviewed for certain basic information that sufficiently describes the invention and acts as a reservation of right until a corresponding non-provisional application is filed for substantive review and examination for obtaining a patent grant. The provisional application only lasts up to one year and it provides only provisional rights within that time period.
In contrast, a non-provisional patent application requires very specific and advanced details of the invention in conformity with all formalities required in an application for examination, including a detailed specification and drawings. A non-provisional application is carefully examined by a patent examiner at the USPTO. The process for a non-provisional application can take several years of prosecution, but it is the only path to actually obtaining a patent registration for an invention.
Advantages of Filing A Provisional Patent
Additional Time
Provisional patent applications provide a significant benefit to the inventor who has a great idea but just needs more time, for some reason. From the date the provisional patent is published, the inventor has one year to file a non-provisional patent application.
This time allows an inventor or owner of the invention to develop the invention further with research or testing before committing to the expensive and arduous process of obtaining a non-provisional patent, without the fear of having someone else file an earlier patent during the R&D process. A provisional patent can also provide time for an owner to obtain funding, present the idea to investors, and or even try to sell the invention, prior to spending significant money to proceed with the patent examination process. The provisional application also provides an early effective filing date in a later filed non-provisional patent application.
Claim Patent-Pending Status
Once the provisional application is submitted and accepted, the invention is considered to hold a “patent pending” status. Officially using this label in relation to an invention lends credibility and may offer leverage in business deals. Likewise, companies are more likely to view the invention favorably knowing the patent rights process has already been initiated. And, the patent pending status helps to prevent disculosure to third parties in negotiations from stealing the exact idea, since the provisional patent is helping secure the right to that particular idea.
What’s the Provisional Patent Process?
The Patent Search
While as discussed above, a provisional patent is not reviewed for registration and merely reserves rights, it is important to note that there is still money and time involved in drafting and filing such an application. And, since the key requirement for obtaining a patent grant is that there must not be any prior public disclosure of the same invention, a patent search by a professional patent researcher should be done to help identify existing rights in similar inventions as well as the chances for succeding in obtaining a registration. Such a search if often best done prior to filing a provisional application. However, it can be done after the filing of an application if time is of the essence to obtain the provisional application filing date. If the patent search results indicate the existence of the same or similar invention (known as “prior art”), further analysis needs to be conducted to determine the likelihood of success in obtaining a registration, to decide whether the investment in the patent process is worth proceeding.
The Provisional Patent Application
A provisional application, while much more simple in formality than a non-provisional application, still requires certain elements to be accepted. Additionally, since it provides the basis for a later non-provisional application for review for registration, it must include sufficient detail to identify the invention and support the later filed non-provisional application. Therefore, it is important to seek the advice of an experienced patent attorney to properly preserve the patent rights being sought.
After the provisional application is submitted, the USPTO will confirm the basic and minimum requirements have been met before accepting the appication and issuing a provisional patent application number. However, once accepted and a number is assigned, the owner can claim patent pending status of the invention.
Key Takeaways about the Provisional Patents
A provisional patent can help:
provide a lower cost, temporary right to claim patent pending status;
preserve rights during R&D or negotiations with third parties; and
provide additional time for flushing out a patent application for review while securing an early filing date.
For more insights on Provisional Patents, see our Patent Services Overview and Industry Focused Legal Solutions pages.