How to File a Provisional Patent Application Successfully

Key Takeaways

• A provisional patent application allows inventors to secure a “patent pending” status for 12 months without formal patent claims or an oath.
• It is a cost-effective way to establish an early filing date while preparing a non-provisional patent application.
• Key components include a detailed written description, any necessary drawings, and the proper USPTO cover sheet.
• Common mistakes include filing too early, providing incomplete descriptions, or misunderstanding the one-year filing deadline.
• Filing can be done independently, through online services, or with the assistance of a patent attorney for better accuracy and protection.

How Do You Write a Provisional Patent?

A provisional patent application is fairly simple, but it must include the following:

• A written, detailed description of the invention
• Drawings or illustrated figures that support the invention
• Text that describes the drawings or figures
• Your name and contact information
• Your lawyer's name and contact information
• A cover sheet

A provisional patent application is not legally binding and does not actually patent your invention. However, it does give you a full year from the filing date to submit the forms and payments you need to make the non-provisional patent a reality. During this time, your invention is "patent pending" and protected.

If you find the idea of writing your own provisional patent application overwhelming, compare sample applications online. Stanford University has a detailed provisional patent application template you can download for free. Other templates are equally good to use as long as they contain the required information.

Writing Your Provisional Patent Application

To help you prepare a provisional patent application, you should:

• Review and compare existing patents

You can find issued patents on the USPTO website. Simply search for patents similar to inventions such as yours. Since the USPTO search engine is a Boolean system, you will need to enter appropriate keywords and allow for adequate time to locate issued patents and any published applications. The results will provide guidance on how to prepare your own application.

Keep in mind that well-written patent applications start with background information. Gathering this information in advance is important for describing every element of your invention.

• Write the description

Writing a description of the invention may seem difficult, but the following tips should help. First, here are some general guidelines:

• Plan the document before writing anything, making an outline and listing all points that need to be covered
• Use a readable typeface such as Times New Roman
• Divide the application into sections, and then divide those sections into smaller sections if necessary
• Don't use any needless words or slang
• Use numerals instead of spelling out numbers
• Write in active voice, not passive
• Simplify any wordy phrases
• Organize the document's contents by order of importance

A strong description should always include the following elements in this order:

• Invention title
• Technical field
• Prior art and background information
• Description of how the invention addresses a problem
• List of drawings or figures
• Detailed description
• At least one example of the invention's intended use

Tips for Writing the Invention Description

To help you craft your invention's description, follow this suggested outline:

1. Come up with a strong title for the invention. The title should be specific, precise, and short, with no more than 15 words. For instance, if you've invented a new wrench with a soft, oversized grip, you can call it "Wrench with Enlarged Soft Grip." While tempting, you should avoid naming your invention after yourself. Also, avoid the words "improved" and "new," and don't use a registered trademark.
2. Write a broad statement describing your invention's technical field. For the wrench example, you could write, "the invention relates to wrenches designed for people who have trouble using tools due to reduced grip strength."
3. Offer more background information about your invention that people will need to search for, understand, or examine. You could write something like, "People with weakness or disabilities in their hands, such as those with arthritis, often have trouble using tools requiring grip strength, such as wrenches, hammers, etc."
4. Discuss any problems others have faced in this area and what attempts have been made to solve them. This type of background information is known as "prior art." Prior art is defined as the published body of knowledge relating to an invention. It can include existing patents, other published applications, advertisements, technical literatures, and even lectures. When you do prior art research and find that a wrench already exists with a rubberized handle, but that it's an old-fashioned design, you should describe it and distinguish how your wrench sets itself apart.
5. In general terms, state how your invention solves identified problems. How does it stand out from similar products? In the wrench scenario, you could say, "the soft grip solves prior wrench problems by offering a larger circumference with a soft surface contoured to fit the hand."
6. List the drawings you're including in the application by figure number. For example, the first drawing would be FIG. 1, and so on. Offer a brief description of what each drawing illustrates. Refer to these drawings throughout the description using the same reference numbers and terminology throughout.
7. Describe the invention with as much detail as possible. It's always best to be too wordy than to leave anything out. Don't forget to describe each part, and how the parts fit together. If you're patenting a process, describe each step in detail, what happens when you make a change, and the process's end result. You should also mention if a part can be made of different materials. Be so precise in your description that someone else could make at least one version of the invention.
8. Provide an example of the invention's intended use.
9. Review and edit your provisional application draft. Check for consistency in terminology, grammar, and reference numbers. You may want to create a separate parts list including the name of each part as well as its reference number.

Required Elements of a Provisional Patent Application

When learning how to file a provisional patent, it’s essential to understand the mandatory components required by the United States Patent and Trademark Office (USPTO). While a provisional application is more flexible than a non-provisional one, it still must contain:

• A written description of the invention sufficient to enable someone skilled in the art to replicate it.
• Any drawings necessary to understand the invention (optional but recommended).
• The names and contact information of all inventors.
• A USPTO-compliant provisional application cover sheet (Form SB/16).
• The required filing fee.

The provisional application does not require:

• Formal patent claims
• An inventor's oath or declaration
• Information disclosure statements (prior art references)

Including clear and thorough documentation helps avoid gaps in protection if you later file a non-provisional application that claims priority to your provisional filing.

Why Is Writing a Provisional Patent Application Important?

Filing a provisional patent application gives you one full year from your filing date to submit the non-provisional patent application. It's a useful placeholder for fleshing out your official application and coming up with the funds needed to pay for the patent.

The provisional patent application should include everything a non-provisional application does except the "Claims" section. This defines the scope of the patent's protection. If you're hiring a patent attorney to take care of the entire process, the provisional patent application should take about 80 percent of the time it takes to prepare the non-provisional application.

To save money, many inventors choose to file their own provisional patent application. If they do want legal advice later, they can pay an attorney for filing the more important non-provisional patent application.

When filing a provisional patent application, you have three options:

• Self-draft the application yourself
• Hire a cheap service to do it for you
• Hire a patent attorney

Since hiring a patent lawyer is the more expensive option, you may consider an affordable patent service. Remember, though, that these services are usually too good to be true. Cheap patent services sometimes prey on inventors and offer big promises they can't deliver on.

When you're on a budget but still need to protect your invention, self-drafting the provisional patent application may be your only option.

Benefits of Filing a Provisional Patent Application

Filing a provisional patent application provides several strategic benefits for inventors:

• Establishes an Early Filing Date: Locks in your priority date, which can be critical if competing inventors file similar applications.
• Permits “Patent Pending” Labeling: This public notice can deter potential competitors and attract investors or business partners.
• Lower Initial Cost: Filing fees for provisional applications are generally lower than for non-provisional applications, making it accessible to solo inventors and startups.
• Simplified Filing Process: No claims or prior art statements required.
• One-Year Preparation Window: Offers time to refine the invention, test the market, or seek additional funding before committing to the formal patent process.

Reasons to Consider Writing a Provisional Patent Application

While writing your own application is the cheapest option, it does require a lot of time and effort. For most individuals with simple inventions, the United States Patent and Trademark Office charges $65 to file a provisional application. Any other charges will come from the costs associated with legal advice and professional patent illustrations, if required.

The downside is that you'll have to research the patent process in depth. You will need to do the following:

• Research and compare provisional patent application templates
• Draw your own illustrations or hire someone to do it for you
• Educate yourself on the risks and benefits of self-drafting
• Understand that your invention is not patented until you file a non-provisional patent application within one year from the provisional filing date

Reasons to Consider Not Writing A Provisional Patent Application

Despite being a simple process, filing a provisional patent application on your own is not without risk. If your provisional patent application is missing key information, that component of the invention won't be protected from the original filing date. Instead, that date will fall to the non-provisional patent application date. This may not affect the patent at all, but it could mean that a competitor files for a non-provisional patent for the same concept before you do.

There are also reasons not to file a provisional patent application at all. If your invention doesn't have any competition and you haven't disclosed any information about it to the public, you could wait to file a non-provisional patent application. However, if you want your idea to be protected while you raise funds for the patent and flesh out the legal application, a provisional patent application is a smart move.

When a Non-Provisional Patent May Be the Better Option

In some situations, filing a non-provisional patent application directly may be more appropriate than starting with a provisional patent. Consider skipping the provisional route if:

• Your invention is fully developed, and you’re ready to pursue enforceable patent rights immediately.
• You need international patent protection right away (since some foreign patent systems do not recognize provisional applications).
• You require enforceable claims for licensing negotiations or enforcement actions.

Consulting a patent attorney can help you decide whether a provisional or non-provisional strategy is best for your particular circumstances.

Deadline for Writing a Provisional Patent Application

The time limit for filing a provisional patent application is one year from the date of the invention's first sale, public use, publication, or offer for sale. Patent laws in foreign countries may vary, so if you plan on patenting the invention outside the U.S., do your research carefully.

Common Mistakes in Writing a Provisional Patent Application

• Filing too early. Since you are requesting a priority date for your patent, you shouldn't file a provisional application unless you know you can file the non-provisional patent application within one year. If you fail to do so, the provisional application will expire, and your invention won't be protected.
• Not providing enough information. When writing your provisional patent application, always err on the side of too much information rather than not enough. Overlooking a component can result in losing your patent later.
• Failing to research how to write a provisional patent application. Since there is no actual form or specific guideline required by the United States Patent and Trademark Office, you may think the document details don't really matter. However, any oversights can cause problems when filing the non-provisional application.

How to Avoid Pitfalls When Filing a Provisional Patent

Here are key best practices to avoid common errors when filing a provisional patent application:

• Describe Your Invention Completely: Include every aspect of your invention, even potential variations, to maximize protection.
• Avoid Filing Prematurely: Ensure your invention is sufficiently developed before filing. A vague or incomplete application can weaken your claim.
• Don’t Rely Solely on the One-Year Deadline: Use the time wisely to prepare a strong non-provisional application or risk losing your priority date.
• Maintain Accurate Records: Document the development process and any public disclosures carefully.
• Understand Provisional Limitations: Remember that a provisional application does not grant enforceable patent rights—it is only a placeholder for the non-provisional application.

Frequently Asked Questions

1. What is the purpose of a provisional patent application?
   A provisional patent application helps inventors secure an early filing date and "patent pending" status while allowing time to further develop their invention or prepare for a non-provisional patent filing.
2. How long does a provisional patent last?
   A provisional patent application lasts for 12 months from the filing date. You must file a corresponding non-provisional patent application within this period to benefit from the provisional filing date.
3. Can I file a provisional patent application without a lawyer?
   Yes, you can file on your own, but many inventors choose to consult a patent attorney to ensure their application is thorough and adequately protects their invention.
4. Does a provisional patent provide legal protection against infringement?
   No, it does not grant enforceable patent rights. However, it establishes a priority date, which may later be used to support a non-provisional patent application that provides such protection.
5. What happens if I miss the one-year deadline to file the non-provisional patent?
   If you miss the deadline, the provisional patent application expires, and you lose the priority date. You would need to start the patent process again without the benefit of the earlier filing date.

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