What Are Provisional Patent Applications?
Provisional patent applications are informal, initial patent applications that set a priority date for the inventor and give them time to perfect their invention without having to include the detail required in formal patent applications.
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“Patent Pending”
If you have ever seen or heard the “patent pending” descriptor, that means the relevant invention is the subject of a provisional patent application. Akin to the intent to use trademark application, provisional patent applications essentially allow the filer to set a preliminary date securing rights should they come to meet the requirements for a formal patent application.
No Examination
Provisional patent applications are not examined by the USPTO for patentability. Typically, patent applications require the filer to provide a formal patent claim and an oath or declaration, as well as the results of a prior art search. Provisional applications, however, require none of these details. They do require a detailed description of the invention explaining the various components, how it works, and how it will be used, and the USPTO recommends filing any drawings necessary for the understanding of the invention. A careless or incomplete provisional application can be denied later by the USPTO examiner, which remove the priority date and require filing another provisional application. Therefore, while the requirements are relaxed, it is still important to take these applications seriously.
Advantages
One key advantage offered by a provisional patent application is the early priority filing date. Given that the US patent system is “first to file,” securing an earlier priority date can be invaluable. The provisional application has a period of 12 months, in which a corresponding nonprovisional application must be filed. Even better, filing a provisional application does not start the patent term clock, meaning it can effectively grant an extra year of protection. Also beneficial, this extended period allows time to get the requirements for a standard application together while maintaining protection. In this time, the commercial application of the invention can be further flushed out, and potential investors and licensees can be pursued.
A business or individual seeking to patent their new innovation should be aware of the powerful advantages granted by a provisional application as it may afford extra protection in the face of competition.
For more information on patents and intellectual property in general, see our patent services and intellectual property practices pages.
Klemchuk PLLC is a leading IP law firm based in Dallas, Texas, focusing on litigation, anti-counterfeiting, trademarks, patents, and business law. Our experienced attorneys assist clients in safeguarding innovation and expanding market share through strategic investments in intellectual property.
This article is provided for informational purposes only and does not constitute legal advice. For guidance on specific legal matters under federal, state, or local laws, please consult with our IP Lawyers.
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