How to Apply for a Provisional Patent: Everything You Need to Know
A provisional patent application is one that is filed with the U.S. Patent and Trademark Office (USPTO) and establishes an early filing date.5 min read
How to Apply for a Provisional Patent
If you want to learn how to apply for a provisional patent, you’ve come to the right place! In addition to reading this article, you can visit the United States Patent and Trademark Office (USPTO) website to help you determine what steps must be taken when applying for a provisional patent.
Before you apply for a provisional patent, you want to make sure that you are well aware of the differences between a provisional patent and non-provisional patent. A provisional patent application is somewhat of a pre-cursor to the non-provisional application. More specifically, the provisional patent will provide you with protection for a period of one-year. You will have this one-year timeframe to determine next steps for obtaining non-provisional patent protection.
Is My Idea Patentable?
Before we jump into the specifics of how to apply for a provisional patent, you’ll want to make sure that your new invention is patentable. Not all inventions can be patented. More specifically, ideas cannot be patented. There are certain criteria that must be met in order for a new invention to be patent-qualified; the main piece of criteria being that the invention must be new and obvious. These terms can be rather confusing, which is why the USPTO provides specific details as to what constitutes “new” and “obvious.”
The invention must be new. This means that it must not have already been invented regardless of whether or not it is being sold on the market. For example, many people run a quick patent search to see if their invention has been patented. If it hasn’t, they assume that their invention is new. But this isn’t the case. Any patent examiner will run a search to see if the invention is already out there. If it is, then your invention is not new. Therefore, not only must it be “new” but it must also not be patented. So you’ll want to run the patent search but also run searches in Google to see if there is a similar or identical product out there.
The invention must be obvious. If the invention is confusing in that the general public cannot understand what the product is for or how to use it, then it cannot be patented.
Once you have determined that your invention can be patented, you’ll want to consider the benefits and drawbacks to filing for a provisional patent.
Provisional Patent Benefits and Disadvantages
There are many benefits and drawbacks to having a provisional patent, some of which include:
- You’ll have the benefit of being protected for a period of one-year.
- You can claim that your invention/product is patent-pending to the public.
- No one else can copy or use your new invention during the one-year timeframe.
- You will have this one-year time period to determine next steps as well as further produce your invention.
- You will have one-year to save up additional money that it will cost you to apply for non-provisional patent protection.
- Provisional patents do not provide you with more than one year of protection. After your time is up, you’ll lose protection.
- Even if you file for non-provisional protection after the one-year time period, you’ll temporarily lose protection until your non-provisional application is approved, which may take several years.
- While you can sometimes renew your provisional patent, the USPTO may in fact decline the renewal if you continue renewing it every year. Therefore, you may only receive one-year and nothing more whereas the non-provisional patent provides 20 years of protection at which point you can renew indefinitely.
Generally, inventors have reasons for filing for a provisional patent. One of the main reasons of going this route is to save additional money and further product the invention in a sense to get it ready to introduce to the public. The filing fee is quite reasonable, costing only $65 (micro entity) and $190 (small entity). Therefore, if you are an individual who wishes to patent your invention, you can pay a $65 fee for a provisional patent for a period of one-year before determining if you are going to file for non-provisional protection.
Frequently Asked Questions
1.I have an invention. But how do I know if I can patent it?
You’ll want to do your research. Before visiting the USPTO website and filling out that provisional patent application, you want to make sure that your invention is in fact patentable. There are specific criteria that must be met in order to be patentable, which are mentioned above. Therefore, if you believe that your invention fits these criteria, then you can file for patent protection. As previously noted, there are two types of patent protection – provisional and non-provisional. For the purpose of this article, however, we want to look at what a provisional patent can do for you. However, there are several other articles out there that can assist you in the non-provisional patent process.
2. How long does the provisional patent process take?
The process is quick. You’ll visit the USPTO website and file the application online. Once you’ve submitted it, you’re done! You’ll be able to claim “patent pending” on your invention. But remember that this is not really protection of any kind. It’s more of a pre-cursor to the non-provisional application. Therefore, someone else can still file a non-provisional patent application for a similar or identical product to yours because yours is only patent pending as opposed to fully patent protected.
3. Should I tell anyone about my new invention? What if I want to get advice from family or friends?
While it is a great idea to reach out to your family and friends for questions regarding the patent process, you’ll want to keep the details very broad in terms of your new invention. Remember that your product is not yet protected. Therefore, someone else can copy or use your product and clam it as his or her own. With that being said, however, once your product is in fact patented, it will be published online. Therefore, if someone searches your name or the product, he or she will know that you are the inventor/creator. Be mindful that, with the provisional patent, someone else can still come along and file a non-provisional patent on an identical product. By the time that person’s application reached a patent examiner with the USPTO website, your provisional patent may be expiring. If a patent examiner just so happens to review that person’s non-provisional patent application, then he or she may be able to have the identical product patented without you realizing until it is too late.
4.What types of products can’t be patented?
There are certain general products that face problems when attempts are made to patent it, including smartphone applications, board games, or food recipes. This is because so many similar or identical products can be found within each category. For example, there are several smartphone applications out there for “crossword” style puzzles. While each application has a different name (which can be trademarked), the application itself usually cannot be patented since there are so many out there, and you can’t prevent the creation of this type of application. But it doesn’t hurt to try applying for patent protection, even if you think you won’t succeed. But before you do, just remember the costs associated with it. The simpler your invention is, the cheaper it will cost to file for protection, particularly if you file for protection on your own without an attorney.
If you need help applying for a patent, you can post your legal need 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.