How to Write a Provisional Patent: Everything You Need to KnowPatent Law ResourcesProvisional Patent
A provisional patent application is not legally binding or patent your invention, but it does give you a year from filing date to submit forms and payments.8 min read
2. Why Is Writing a Provisional Patent Application Important?
3. Reasons to Consider Writing a Provisional Patent Application
4. Reasons to Consider Not Writing A Provisional Patent Application
5. Deadline for Writing a Provisional Patent Application
6. Common Mistakes in Writing a Provisional Patent Application
7. Frequently Asked Questions
Updated July 7, 2020:
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:
- 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.
- 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."
- 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."
- 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.
- 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."
- 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.
- 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.
- Provide an example of the invention's intended use.
- 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.
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.
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.
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.
Frequently Asked Questions
- Why should I file a provisional patent application?
Filing a provisional patent application is important if you want to prevent others from stealing your invention by getting you an official patent application filing date. You should also file if you aren't yet ready to apply for the full non-provisional patent. You can then use the phrase "patent pending" to describe your invention.
- How do I submit a provisional patent application?
Submitting a provisional patent application is easy. You can submit it electronically on the USPTO website. You will then receive a confirmed filing date and an application tracking number. If you prefer, send the document via mail to this address: P.O. Box 1450, Alexandria, VA 22313-1450.
- How do I write a detailed description?
You should start with the invention's title and its technical field. Then describe background information and prior art, and tell how the invention addresses a technical problem. Finally, include drawings and at least one example of the invention's intended use.
- How do I make my own patent drawings?
- Can I submit photographs instead of drawings with my provisional patent application?
Yes, you can include photographs with your provisional application. However, photographs are not allowed in a non-provisional utility patent application. During the provisional application stage, many inventors choose to include marked-up drawings as stand-ins for professionally prepared drawings.
- What kinds of patent drawings can I submit?
Informal drawings are acceptable for the provisional patent application, but you should provide formal patent drawings on the non-provisional application. The USPTO will not accept color drawings, so if you submit color illustrations, the Nolo system will convert them to black and white before the filing.
Nonfigurative patent drawings such as electrical schematics, flowcharts, and tables are useful for illustrating diverse inventions such as software, business methods, chemical compounds, and electric circuits. Since you may need to modify your drawings as you go through the patenting process, you should keep copies of your photos or drawings in digital format.
- When do I have to pay the filing fee?
You must pay the provisional patent application filing fee when you file. If you're filing electronically, the USPTO website will prompt you for payment information. If you're mailing your documentation, include your payment information on the cover sheet.
- When will I start to enjoy legal patent protections?
The USPTO grants patents retroactively. Once your patent is issued, you can sue for any patent infringement that occurred after your initial filing date.
If you need help with writing your provisional 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.