A Provisional Patent application lets you file with the U.S. Patent & Trademark Office (USPTO) without a formal patent claim, oath or declaration, or any information disclosure statement, like the prior art, and are not examined. A provisional patent application is a lower-cost, first patent filing in the U.S. that provides the means to establish an early applicable filing date in a later-filed non-provisional patent application. It allows you to apply the term “Patent Pending” when describing the invention. For an overview of the patenting process, view the Patent Process Life Cycle and see our Sample Patent Invention Disclosure Form.
A benefit to a provisional patent is, it provides a way to file with the USPTO that is easier than a non-provisional patent, along with a lower initial investment allowing you twelve (12) months to evaluate the invention's commercial potential before committing to the higher cost of filing and prosecuting a nonprovisional application for patent.
Given provisional patents are valid for only twelve (12) months, you must file a nonprovisional utility patent application before the end of that 12 months from the provisional patent application filing date. If a nonprovisional application is not filed within the twelve (12) months but within fourteen (14) months, it may be allowed by filing a grantable petition to restore the benefit.
There is a minimum of four requirements for a provisional patent Application:
What is a written description of the invention? The written description should be in simple language in which anyone can understand and must include:
What are necessary patent drawings? Necessary patent drawings are drawings that are essential to help others understand your invention and for purposes of clarity. The USPTO recommends six optional formats for illustrations:
An Examining Attorney will review drawings from both the nonprovisional application and the provisional application and compare them to ensure they are similar and about the same invention.
What is the best mode for a patent? The best mode describes the inventors' preferred method for building or performing the invention. The best mode is a safeguard against the desire of some people to obtain patent protection without making the full disclosure. Determining best mode requirements are done by two methods:
A provisional patent application secured the earliest possible priority date for your invention. While not examined or published by the patent office, the provisional application still must meet the minimum requirements of enabling the public to make your invention. Upon filing a provisional patent application, your invention is said to be "patent pending." It is critically important to file your formal utility patent within the twelve (12) month period of filing your provisional patent; otherwise, you will lose your early patent priority date and, possibly, be permanently barred from patenting your invention due to your public disclosures during the pendency of the provisional patent.
You cannot file a design patent as a provisional patent. For more information on the preparing patents, see our Sample Patent Invention Disclosure Form.
A non-provisional utility patent application is the complete version of a patent application ready to be examined by the USPTO. It contains a written description of the invention and at least one claim, which enables someone to practice the invention. If you have previously filed a provisional patent application for the same invention, then the non-provisional utility patent application claims priority to that provisional patent application.
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