What is a Provisional Patent?

Filing a provisional patent application is not the same as an official patent application. The provisional patent application marks your invention as "patent pending." This gives you time to get everything to finish the non-provisional application, which is the binding patent form.

The provisional patent form protects the idea for one year from the filing date. It's a placeholder that gives you time to do the extra research and get funding for your non-provisional patent application.

It is the cheapest, fastest, and easiest way of getting temporary protection for your invention. Best of all, it doesn't need to be completed by a professional, although you can certainly hire a patent lawyer to do it for you.

The provisional patent application is not a legally binding document. There are no formal requirements for filling one out. You don't have to worry about completing the document. However, be detailed enough to protect all aspects of your invention. This is why hiring a patent lawyer to submit the provisional patent application is often recommended. While you can do it yourself, the research alone can become overwhelming and take up a lot of your time.

How to File a Provisional Patent

File Online

Follow these 10 steps to complete your provisional patent filing online through the USPTO's EFS-Web system.

  1. Follow this link to the USPTO website.
  2. Folow the link titled "patents file online"
  3. Follow the link for "unregistered" filer
  4. Complete the information, midway down the form click "Utility" patent. A drop down menu will appear. Click "Provisional". Go to the bottom of the page and click "continue"
  5. Complete this form, include your mailing address in the section titled "Correspondence Address". Click the "continue" button.
  6. Locate the "document description" area. This section requires you to provide PDF files. Select the appropriate description in the drop down box. Click "Upload and Validate".
  7. Next, each of your fiiles should have a red box with a blue diamond and state, "No validation errors found." In the event that you are met with errors, double check the document description. Also attempt using a pdf creator to recreate the file.
  8. With no errors in your pdf uploads, click the "Continue" button. If you are a non-profit organization or an independent inventor with less than 500 employees select "Provisional". Complete with the number of pages and click "Continue". You will now see the total due amount.
  9. The next page is purely for verification purposes. Take the time to verify that everything is accurate and each of your documents are attached. You may even want to open each one to ensure that they are correct. Once your ready, click, "Submit"
  10. Finally, the last step, make the payment. Without payment, the provisional patent will not be accepted. If you pay online, print the receipt. The Patent Office will also mail you a receipt. It takes about 3-5 weeks to receive and will have your official application number and filing date.

Filing through the Mail

You also have the option to mail your forms into the USPTO. From the USPTO's website, download the "Provisional Cover Sheet" and the "Fee Transmittal" form. You will need to include these along with a self-addressed return postcard. The items that you are filing should be listed on the postcard. They will stamp the card and return it to you to document that it has been received. As an additional safety measure, consider using USPS Express Mail with a return receipt.

Hire a Professional

You can complete the process on your own as an unregistered filer. Often, due to the specifics that the USPTO requires the files to be created, you may be met with some difficulty. You always have the option of hiring a professional to file the application for you as a registered filer.

Why Is Filing a Provisional Patent Application Important?

In most cases, it's not essential to file a provisional patent application. If you don't expect any competition to patent your unique idea, you can get by without it.

If have shared your invention with others, they could steal the idea. A provisional patent application protects you for one year, during which you should prepare your full patent application. You will need to get professional patent illustrations, hire legal counsel, and do extra research. During this time, you also need to get the money together to cover the patent costs.

Reasons to Consider Not Filing a Provisional Patent Application

There are some concerns about filing a provisional patent application. One of the biggest problems is clearly describing the invention until filing the non-provisional application. As such, your idea may not be protected. If this happens or your provisional application is filled out incorrectly, the "patent pending" period is ineffective.

Also, if the provisional application was inadequate, you could lose all your patent rights. This happened to an inventor who created a new drill bit with a new body. It was "angled with respect to the sonde housing." This new angle was described in the non-provisional patent application. However, it wasn't mentioned in the original provisional application. The inventor had offered the drill bit for sale during its patent-pending timeframe. This left the entire patent invalid, and the inventor could not claim any benefit from the provisional application.

Because of this, many patent lawyers will not get involved with inventors who have hastily drafted their own provisional applications. If you want to hire a patent lawyer, do so before filing a provisional application and let him or her do the work for you. This makes sure that all documents are correct and reduces the risk of your patent becoming invalid.

Reasons to Consider Filing a Provisional Patent Application

There are times when filing a provisional patent application is the best choice. Your patent rights can be lost if the application isn't filed on time. In such a case, a quickly drafted provisional patent application is better than nothing.

Provisional patent applications can also extend a patent's life. If you've already had the patent application drawn up in its final non-provisional form, submitting the provisional application can buy you an entire year before you need to submit it. After the regular patent application becomes an issued patent, it expires after 20 years. Therefore, that extra year can come in handy.

Also, it's typically impossible for most inventors to afford the cost of a non-provisional patent application. Legal fees for drafting the application can range from $5,000 to $20,000 or more depending on the idea's complexity. There are also government maintenance fees to consider, which run from $350 to $1,000.

In this case, a self-drafted provisional application may be the only course of action. You can then take one year before the expiration date to find investors interested in financing your patent or purchasing the invention.

What Could Happen if You File a Non-Provisional Patent Application Without a Provisional Patent Application?

Once again, a provisional patent application is a placeholder and not necessary in the patent process. You can file a non-provisional patent application and have your patent reviewed and issued immediately, given that you have the funds to do so. There's no way you can turn your provisional patent application into a legal patent. Simply skipping this step usually won't hurt.

If you do choose to skip the provisional application and go straight to the non-provisional one, you'll have to raise money, study the market, and prepare your documents without any form of patent protection. This can be a scary prospect for inventors who fear their idea can be stolen.

You may also want to skip the provisional application due to the added costs and delays. This form is never reviewed by the Patent Office. Other reasons why you might not want to file a provisional include:

  • Wanting time to fill out the patent and file foreign patents. Filing a patent in foreign countries must be done within one year of filing in the United States. Be ready to file all applications at the same time.
  • Not being sure what information to include in the application.
  • Not fully being able to describe what it takes to make the invention work.
  • Needing to file a design patent.

Common Mistakes

You should never file a provisional patent application too early. The provisional patent application is only good for one year. After a year it expires and can never be renewed. Unless you've already submitted the non-provisional patent application to get the patent process started, your invention is no longer protected.

You should also watch out for misleading information online. Certain sources claim they can file your patent application for a couple hundred bucks. These claims refer to the provisional patent application, not the official non-provisional patent application. Unless you just want to have something on file that protects your invention, you shouldn't pay attention to these claims.

Provisional patent applications are kept private and are never made public unless in rare circumstances. Don't be afraid to include as much detail as possible. The provisional application is simple. It should include a comprehensive description, a cover sheet, the names and contact information of the inventor or inventors. Also include the contact information of your lawyer, and any government agencies that have property interests in the application.

If you forget to include certain information on the provisional patent application, you can file a new one. Just keep in mind that each one will cost an extra filing fee.

Frequently Asked Questions

  • Can I file a provisional patent application myself?

Yes, you can. Filing a provisional patent application is the easiest part of the process, but it still requires research if you want to do it right.

  • How much does it cost to file a provisional patent application?

The USPTO charges $65 for a "micro-entity" or individual to file a provisional patent application. The total cost of the patent process can range anywhere from $5,000 to $25,000. It all depends on the nature of the invention and legal fees.

  • How many hours does it take for a lawyer to draft a provisional patent application?

Since provisional patent applications are easy to write, it shouldn't cost too much. Every lawyer is different in what he or she charges per hour. You will have to ask the law firm upfront. The process could be completed in as little as 30 hours. But at $500 per hour, you're looking at $15,000 for the initial draft. Always review costs and payment options beforehand.

  • Who is listed as the inventor on a provisional application?

The inventor is the person who contributed to the concept of the invention. This can often be a dificult question to answer

  • Who owns the actual invention?

Each invention is typically owned by the inventor themselves. However, in the event that an inventor has an employer with ownership rights, then based on the agreement, the employer would own the invention's patent.

  • How much does it cost to patent a simple invention?

Most people only want to patent a simple invention. If you hire a lawyer to do the drafting work and take care of the fees, the costs will typically come in under $11,000.

  • What about complex inventions?

Complex inventions vary in cost. A patent can range from $25,000 to $35,000, or it could come closer to $53,000. It all depends on how complex the invention is and what type of firm you've hired to handle the process.

If you need help with filing your provisional patent, 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, Stripe, and Twilio.