Key Takeaways

  • Filing a provisional patent application establishes an early effective filing date and allows use of the "patent pending" label.
  • It offers a low-cost way to protect an invention while evaluating commercial viability and securing funding.
  • Provisional applications must be detailed and technically complete to offer any real protection.
  • Common pitfalls include vague descriptions, missing essential details, and misunderstanding the one-year deadline.
  • Strategic benefits include flexibility, delayed formal requirements, and opportunity to refine the invention.
  • Foreign patent considerations and investor readiness should be evaluated before filing.
  • UpCounsel can connect you with experienced patent attorneys to assist with filing and strategy.What is a Provisional Patent?

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 a Provisional Patent Differs from a Non-Provisional Patent

While both are tools for protecting inventions, a provisional patent application (PPA) differs significantly from a non-provisional patent application. A PPA is not examined by the USPTO and cannot itself become a patent—it merely establishes an early filing date and allows you to use "patent pending." Conversely, a non-provisional application undergoes formal examination and can lead to an issued patent. Importantly, if you file a non-provisional application within 12 months of your PPA, you can claim the earlier filing date, preserving your place in line against competitors.

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.

Key Requirements and Best Practices for Provisional Patent Applications

Even though a provisional application is informal compared to a non-provisional one, it must include enough detail to fully describe the invention. Key requirements and best practices include:

  • Detailed written description: Clearly explain how the invention works and how to make and use it.
  • Drawings or diagrams: Visual aids should accompany your description when helpful or necessary.
  • Complete technical disclosure: Omissions or generalities can undermine your ability to claim the invention later.
  • Accurate inventor listing: List all inventors accurately, as errors can affect patent rights.

Be aware: a vague or incomplete provisional application may be worthless if the later non-provisional does not match the original disclosure. The quality of the content matters more than the form.

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.

Strategic Uses of Provisional Patent Applications

Beyond providing short-term protection, filing a provisional patent can serve strategic business goals. For example:

  • Investor readiness: The "patent pending" label can increase credibility with investors and partners.
  • Product development: Offers flexibility to refine, test, or modify your invention during the one-year period.
  • Market assessment: Inventors can gauge market interest or commercial viability before investing in full patent prosecution.
  • Priority protection: Secures your place in line under the “first to file” rule, which can be decisive in crowded fields of innovation.

These strategic advantages make provisional filings popular among startups and solo inventors.

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.

When Not to Use a Provisional Application

While filing a provisional patent is often advantageous, it’s not always appropriate. Scenarios where a PPA may not be suitable include:

  • You plan to commercialize quickly: If you’re ready to launch and enforce your patent rights, a non-provisional filing may be faster.
  • You’re filing internationally: Some countries do not recognize provisional applications. Coordination with foreign filings must be carefully timed.
  • The invention is not yet developed: Filing prematurely may lead to insufficient disclosure, weakening future claims.
  • You’re seeking design patent protection: Design patents must be filed as non-provisional applications.

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.

International Considerations for Filing a Provisional Patent

If you are considering filing for patent protection outside the United States, timing becomes critical. A provisional application can serve as the basis for international filings under the Patent Cooperation Treaty (PCT), but:

  • You must file foreign or PCT applications within 12 months of the U.S. provisional filing.
  • Failing to do so can forfeit your rights in many countries.
  • Use this one-year period strategically to evaluate international markets and align your filing strategy accordingly.

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.

How to Strengthen Your Provisional Patent Filing

To ensure your provisional patent filing provides effective protection, consider the following tips:

  • Use patent-style language: Write as if preparing a non-provisional patent, with claims-style detail, even though formal claims aren’t required.
  • Include multiple embodiments: If your invention could take different forms or configurations, describe them all.
  • Don’t rely solely on future updates: You cannot “add” to a provisional later. Any changes must be filed in a new application.
  • Consider professional drafting: Especially for complex inventions, a patent attorney can help you articulate technical details to maximize protection.

Filing a Provisional Patent Application Yourself

Yes, you can file a provisional patent application on your own. It is often considered the easiest step in the patent process, particularly because it doesn’t require formal claims or examination. However, filing it correctly still requires time, research, and technical accuracy to ensure your invention is adequately protected. While legal representation is not mandatory, seeking guidance from a patent attorney can help avoid costly mistakes.

Cost of Filing a Provisional Patent Application

The base fee to file a provisional patent application with the USPTO is $65 for micro-entities, which includes most independent inventors. However, the full cost of the patenting process—from provisional to non-provisional filing, including attorney fees and additional documentation—can range from $5,000 to $25,000, depending on the complexity of the invention and the legal support you engage.

Time and Cost for Attorney Assistance

Although provisional applications are generally more affordable and faster to draft than non-provisional ones, hiring an attorney can still be a significant investment. Patent attorneys often charge by the hour, with some quoting as much as $500 per hour. Drafting a strong provisional application could take up to 30 hours, which might result in legal fees up to $15,000. It’s essential to get a cost estimate and understand payment terms upfront.

Determining Inventorship

The inventor listed on a provisional application is the individual (or individuals) who contributed to the conception of the invention. Identifying the correct inventor(s) is crucial and can be more complex than it seems, especially in collaborative projects. Misidentifying inventors can jeopardize the enforceability of a future patent.

Ownership of the Invention

By default, the inventor owns the rights to the invention. However, if the inventor is employed and has signed an agreement assigning rights to their employer, the company may hold ownership of any inventions created within the scope of employment. Always review employment or contractor agreements related to intellectual property ownership before filing.

Cost to Patent a Simple Invention

For those seeking to patent a relatively simple invention, costs are usually more manageable. With the help of a lawyer handling the drafting, filing, and follow-up, the total expense typically falls under $11,000. This cost includes USPTO fees and attorney services but can vary depending on how thoroughly the invention must be described.

Costs for Complex Inventions

Complex inventions typically incur much higher costs due to the need for detailed descriptions, multiple claims, and often multiple revisions. Filing and securing a patent for a complex invention can range between $25,000 and $35,000—and in some cases, even up to $53,000. The total depends on factors such as the invention’s technical depth and the level of legal support required throughout the process.

Frequently Asked Questions

1. What is the "patent pending" status and when does it apply? The term "patent pending" can be used once you file a provisional or non-provisional patent application. It alerts others that an invention is under patent review.

2. Can I convert a provisional patent to a non-provisional patent? No, a provisional application cannot be converted. You must file a new non-provisional application within 12 months to claim the benefit of the provisional’s filing date.

3. Can I file multiple provisional applications for the same invention? Yes, but only the most recent will count unless you reference and fully incorporate earlier filings. Keep track of filing dates carefully.

4. Does the USPTO review my provisional patent application? No. The USPTO does not examine or publish provisional applications unless they’re referenced in a later non-provisional application.

5. What happens if I miss the 12-month deadline to file a non-provisional application? You lose the benefit of your early filing date, and your invention may become unpatentable if it has been publicly disclosed or sold.

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