Is a provisional patent worth it? The first thing that has to be mentioned is that there's no such thing as a provisional patent. The right name to give it is a provisional patent application, and it's not automatically granted. The provisional patent application is a legal document, and a granted patent gives you the right to sue another party for patent infringement.

A provisional patent application only grants a patent pending and not a patent granted, which means you have no legal protection if someone copies your invention. A patent application will not be a patent itself, but it can be useful for inventors. The application is effective in stopping the clock compared to statutory bars and allows you to say you have a patent pending.

Provisional Patent Introduction

Provisional patent applications are a good way to move toward a utility patent. Poorly made provisional applications are not effective for their purpose. Bad applications can be used against the inventor in the future to say there was no invention, or that it's just an idea. Filing an adequate provisional patent application that describes the invention sets priority and satisfies first-to-file rules.

A provisional patent application should be understood as the first step toward receiving a patent. You will also have to file a nonprovisional patent application to get a patent in the U.S. Since June 8, 1995, the United States Patent and Trademark Office has given inventors the option to file a provisional patent application. On that date, the patent term changed from 17 to 20 years from the filing date of the nonprovisional patent application.

When you invent something in the U.S., you have to obtain a foreign filing license before filing abroad, which is easily done by filing in the U.S. But if you file a nonprovisional utility patent application, the patent term clock starts. Those who lived outside of the U.S. can file a patent and would lock in priority, but the patent clock would not start. To address the issue of foreign citizens having more rights than U.S. citizens, Congress created a provisional patent application which can be filed by anyone and doesn't start the patent term clock.

Benefits of Provisional Patents

  • Provisional patent applications are cheaper to prepare, ranging from $130 for small entities and even $65 if you qualify as a micro entity, for hundreds in savings compared to a nonprovisional patent application. The invention must be described with the greatest detail possible.
  • Anyone with patentable work can work on applying for a provisional patent while spending less time on the nonprovisional one. Describe what you can, file a provisional patent application and work toward perfecting the invention for the market. This is why a provisional patent is good for a limited budget. The grace period to file is now weak and nonexistent, which means you need to file before you finish working on the invention.
  • Provisional patent applications are a great help for those who want to continue working on their invention. Describe what you have and file the application. Once you're done with the invention, file the nonprovisional patent application with any additional improvements.
  • Once you have filed a detailed provisional patent application, your invention can be marketed without the thought of losing your patent rights, thus creating cash flow for future inventions.
  • The application can preserve your future patent rights in the U.S. and abroad by establishing an earlier filing date.
  • A provisional patent application is a U.S. national application for a patent filed under USPTO. Focus on describing the invention as much as possible, and you won't have to worry so much about the formal requirements of a nonprovisional patent application.
  • Provisional patent applications require fewer formalities, so the focus is on the disclosure of the invention and not the manner of disclosure.

When Is a Provisional Patent Application Best?

In many situations, the invention you initially pictured will not be the same as the one you will patent. You can't describe everything because you don't have the invention completely finished. As you make improvements to your invention, you can file another provisional patent application or move to a nonprovisional application.

You can file many provisional applications and then, within 12 months, file a nonprovisional application to claim priority back to each of the provisional patent applications. Provisional patent applications are ideal when you have something that could be protected but are continuing to work on it.

If you need help with a 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, Stripe, and Twilio.