How Long Does a Provisional Patent Last

Protections through a provisional patent application are only for one full year from the application filing date. This period is called a "pendency period." During this time the patent process is pending and cannot be extended under any circumstances. If you ignore the deadline without submitting the full non-provisional application, you risk losing the rights to your own invention.

Even though this term is used by inventors and some patent services, there is no such thing as a provisional patent. What the term is referring to is aprovisional patent application (PPA), which is not even a patent at all. 

A provisional patent application is often the first step in the patent filing process. Unlike a non-provisional patent application, which comes later, the provisional application is not necessary and won't give your invention a patented status. What it will do is make your invention "patent pending," and protect your idea for one year. Before then, you must complete and file the non-provisional patent application in order to patent your idea.

A PPA consists of:

  • Several pages of text referred to as the "specification," which describes how to make and use the invention.
  • Illustrated drawings that enhance the above information.
  • A cover sheet with your contact and payment information.

You can easily create your own PPA and submit it via the USPTO's website, but make sure you do the necessary research to be sure you include the information you need.

Why is a Provisional Patent Application Important?

A provisional patent application gives you temporary protection rights. These applications are the most affordable in the patent process. They're a great way for inventors to get the protection needed without having the funding to fully patent an invention. A provisional application acts as a placeholder while you work out funding. During this time, you will come up with an overall patent strategy before the year is up. Anyone with ownership rights to an invention can file a PPA.

Even if you invented the product you're trying to patent, your ownership rights could be questioned if:

  • Your employer has a "shop right" implied license.
  • You were hired specifically to create the invention.
  • You signed a statement giving your ownership rights to someone else.
  • You signed an employment agreement that made you give up your rights.

In the event that an invention is filed by the inventor's employer, an Assignment can be filed with the USPTO to change ownership of the invention. This can be done at the time of the patent application or at anytime afterwards. 

Once you file a provisional application, you'll receive a priority date. This date is when the full non-provisional patent application must be submitted. The patent term itself won't start until the regular application is filed or when the provisional patent application is converted. The full patent term is typically 20 years.

Reasons to Consider How Long a Provisional Patent Will Last

Since the United States Patent and Trademark Office (USPTO) gives you a full year to convert a provisional patent application to a formal patent application, you need to plan your application process carefully. Submitting a provisional patent application too early could mean not having enough time to raise the funds needed to apply for the full patent within one year.

Sometimes, you're not ready to file the non-provisional patent application before the end of the year. In this case, you can file a new provisional patent application with more details about your invention. The downside, however, is that you can only claim protections from the non-expired provisional patent application.

If you're not sure whether filing a provisional patent application is right for you, it's okay to assume that it is if any of the following applies:

  • You think your invention has a chance for commercial success.
  • Your original patent search didn't find any similar inventions, or "prior art," that could prevent you from getting a patent.

Pros and Cons of Filing a Provisional Patent Application

Writing and filing your own provisional patent application comes with several benefits:

  • You can use the "Patent Pending" notice to keep others from stealing your invention.
  • You can take an entire year to assess the invention's commercial potential before committing to paying the higher costs of filing a full, regular patent.
  • You may be considered the "first to invent" before even testing or building the invention.
  • Your application remains private.
  • You set up an official filing date with the Patent Office.
  • You enjoy an extra year of patent rights before even filing the full patent application.

As for drawbacks:

  • Any changes to the provisional patent application will need a new application.  This includes adding, modifying, or taking away parts, changing the invention's structure, or adjusting its operation. These additional applications can add up.
  • Inaccurate information on the PPA can undo your protection rights. Leaving out an element of the invention, using faulty data or drawings, or failing to explain certain aspects of the invention can void any chances of getting a patent.

Deadlines for Filing a Provisional Patent Application

A provisional patent application is not even necessary to patent an invention with a non-provisional patent application. Therefore, there is no specific deadline for submitting one. However, if you've been marketing your invention or have given away any of its details, you should file a PPA as soon as possible.

In some cases, you may choose to work with a legal service or patent lawyer who will do the filing for you. Deadlines may then apply.

Keep in mind, though, that you do not need a lawyer to file a PPA for you. Hiring a patent lawyer is a good idea if you plan to go all the way and file a non-provisional patent application. However, professional legal advice isn't necessary at this early stage.  You can do the research and fill out the application yourself. Keep in mind that there's something to be said for having a patent lawyer behind you.

What Could Happen if You Go the Provisional Route?

Even though filing a provisional patent application isn't necessary, it's a common strategy for inventors seeking patents. Going the provisional route is a two-step process that starts with the first provisional application. The second step is filing a non-provisional patent application within one year. This route can give you an extra year of patent protection before you even patent the invention, even though the Patent Office will never see the PPA.

When opting for the provisional route, you will need to perform a patentability search. You can do this by looking up keywords related to your patent on the Patent Office's website or Google Patents. This may take several weeks, especially if you're doing it in your spare time.

After the research comes the PPA drafting. Following a PPA template, you'll document your invention and its uses in detail. Since drawings are required, you may want to consider hiring a patent illustrator. If that's not a viable option, don't be afraid to do it yourself. Just be sure the illustrations are just as detailed.

Once you've filed the PPA with the Patent Office, you'll receive a confirmation number and priority date. Pay attention to the priority date, since this is the date your PPA protection expires. You must have your non-provisional patent application filed before then to have your invention officially patented.

Frequently Asked Questions

  • Does a provisional patent application protect my idea?

Yes, for one year. Your invention will be "Patent Pending," giving you time to complete the non-provisional patent application. Be aware that someone else can also submit a provisional patent or even a non-provisional patent, they just won't have the earlier filing date. Additionally, the provisional patent is not a granted patent, it is simply a "patent pending". It does not afford you with any protection from a third-party copying your invention.

  • Can I market my invention without a patent?

Yes. You're not required to wait until you get an official patent before marketing, selling, producing, or licensing your product. You must, however, wait until the PPA is filed so that your invention is Patent Pending. Otherwise, your ideas could be stolen.

  • Do I need to have all my patent application paperwork finished to file a PPA?

A provisional patent application is not a formal document, so it doesn't require an oath, patent claim, declaration, or disclosure statement.

  • Can I include more than one invention in my PPA?

You may describe more than one invention in your provisional patent application because this document will not be reviewed at the Patent Office. If you need to get a patent for more than one invention after the provisional application date, you must do so within that year. 

If you need help with your provisional patent application, you can post your question or concern on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.