What Is a Provisional Patent Application?

A provisional patent application is one that is filed with the U.S. Patent and Trademark Office (USPTO) and establishes an early filing date, but doesn’t equate to a patent application unless and until the applicant files a non-provisional patent application within the 12 months subsequent to filing the provisional patent application. A provisional patent application is both less detailed and less costly.

Provisional Patent Overview

Immediately after you file your provisional patent application, you can indicate that your invention is patent pending on any prototype. During this time period, you can also still file a utility or design patent. But, you have 12 months to develop your product even further and turn your provisional patent application into a formal patent application.

There are two things to be mindful of when filling out a provisional patent application, which include: [1] Avoid using restrictive language in the description of your invention, i.e. “essential,” “necessary,” etc. and [2] Be broad (while also being precise) in your description.

When determining whether to file a provisional or non-provisional patent application, you should think of the provisional route as a two-step process whereas the non-provisional route is a one-step process.

Below are the two steps you as an inventor would take when choosing to file a provisional patent application for your invention:

Step 1: The first step is to file your provisional patent application. You’ll also be required to pay the filing fee, which is generally $125 for a small company. Note that the provisional application will not include the ‘Claims’ section, which specifically includes a claim, or declaration, that the invention is yours and that you are unaware of any similar types of inventions that already have patent protection. What is, however, required in this application is a description of your invention. You should be detailed and specific as to all aspects and features of your invention.

To reiterate, while you are not required to include a ‘Claims’ section in your provisional patent application, you can do so if you wish. This can help you succeed in your non-provisional application should you choose to file it within 12 months after the filing of the provisional application.

Step 2: After filing a provisional patent application, you’ll have 12 months to then file for non-provisional patent protection. After filing this application, the non-provisional application claims the benefit of the provisional application. Therefore, you should make sure that your provisional application is specific and detailed. While it is a rather straightforward and easy application, take it seriously because all items in that provisional application will be put into the non-provisional application.

Keep in mind that provisional applications are not examined. Only non-provisional patent applications are placed in a queue and subsequently examined. Before filing a provisional patent application, you’ll want to consider whether or not you’ll file on your own or hire a qualified patent attorney.

Hiring a Patent Attorney

When provisional patent applications are poorly drafted, they may not be successful. While there are seminars and workshops you can attend, you just won’t be as trained or well versed in this area as a patent attorney is.

While provisional patent applications are easier to do on your own than a non-provisional application, inventors often forget that there are still requirements that must be met in order to be successful in protecting your invention.

A patent attorney can make the process go more smoothly. Most importantly, a patent attorney will do the legwork for you, ensuring that you have a well-drafted application to increase your chances of receiving protection.

Trying to ascertain the costs associated with patenting an invention in the United States can be rather difficult, as it depends on the technology involved. It is important to understand that the act of patenting an invention can bring challenges. Your invention must be unique, and the strict measures imposed by the United States Supreme Court, United States Court of Appeals for the Federal Circuit, as well as other regulations imposed from the USPTO have made it difficult to have an invention patented. However, with that being said, it is easier to obtain a patent today than it was five to ten years ago. Although it may be easier, it is certainly not cheaper.

In order to better understand the costs associated with patenting your invention, you should consider the following:

  • Discuss with a patent attorney, or even analyze for yourself, the costs associated with preparing and filing a patent application with the USPTO.
  • Consider the type of invention you have. How complex is it? If complex, the process may be costlier and more time-consuming. If you have a simple invention, however, the patent review may not take as long, and thus, will be cheaper.
  • If you are going to receive a patent, then you will be required to fill out a non-provisional patent application.
  • Government filing fees of $730 are the minimum costs associated with patent applications for small entities.
  • The fees associated with micro entities are generally at least $400.
  • Professional drawings, which are highly recommended, will typically add another $300-$500 depending on the complexity of the drawing.
  • Don’t forget — if you hire an attorney to assist you in the application process, you’ll be responsible for legal fees, which won’t come cheap with patent applications. The more complex your invention is, the higher the legal fees will be.
  • You’ll want your application to be as strong as it can be in order to be successful in patenting your invention. Therefore, taking the time to hire an attorney and a professional to draw your invention on paper (for the patent examiner to review so he or she can better understand your invention and the economic purpose of it), is important.
  • Generally, individual investors may want to find ways to cut corners financially. However, it is important to note that a patent application is not straightforward. There are many intricacies involved in the application, and a strong application usually involves an attorney’s assistance.

Other Options for Patenting

An inventor who seeks patent protection has three options when seeking protection, including self-drafting, hiring a patent attorney, or hiring a cheap patent service.

Self-drafting a provisional patent application requires the inventor to spend a great deal of time learning the process, preparing patent drawings and preparing the written description of the invention. If choosing to self-draft, you should be aware of the risks associated with choosing to do it alone.

You can chose to hire a professional service, someone other than a patent attorney, which is generally much cheaper than hiring a patent attorney costing around $2,000. But be careful with this option. There are many companies claiming to provide legitimate services with the intent of scamming people and charging them money for poorly drafted patent applications.

If you choose a professional service, you’ll want to make sure that you ask certain questions before hiring the company. First, you’ll want to know if the individuals working for the company are licensed with the USPTO. If so, you should ask for their registration numbers so you can confirm this information. You should ask how many years of experience each individual has. If hiring a non-patent attorney who works for such a company, he or she cannot draft a provisional patent application for you; therefore, you shouldn’t use his or her service. In addition, you should consider the value of your invention. If you believe you have a highly valuable invention, you should choose a licensed patent attorney to assist you in the process.

As previously noted, you can hire a licensed patent attorney. An attorney, while more costly than the other two options, can prepare a well-drafted patent application, which can help you in the long run.

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, Stripe, and Twilio.