Key Takeaways

  • Provisional patent applications are not published by the USPTO unless linked to a non-provisional application.
  • A complete provisional patent search often requires using databases like PAIR, WIPO, and Espacenet.
  • Searching related non-provisional patents can help uncover provisional filing details.
  • A poorly drafted provisional application can weaken your patent claim later.
  • Third-party patent search services may provide broader access to unpublished data and global filings.

Provisional Patent Lookup

A provisional patent lookup is the process you need to go through before submitting a provisional patent application. This allows you to do research on whether or not another entity has already applied to get the patent for a product or idea for which you want to get a patent.

Once you complete your due diligence on your topic and are sure that there is no existing provisional patent application for your idea pending, you are ready to go ahead and submit your own provisional patent application.

A provisional patent lookup can be hard to complete, however, because existing provisional patent applications can be difficult to find in the public domain.

Searching for U.S. Provisional Patents

You can only get a patent on an invention that is a new idea. Spend some time making sure that nobody else has created the same thing as you before you waste your time and money on filing a patent application.

The first thing you can do to check if there's no similar creation out there is to spend time searching websites through such search engines as google.com and google.com/patents. If you find the exact idea as yours already in progress, don’t bother filing a provisional patent application. The patent office will only shoot it down, noting that your idea is already being pursued by someone else.

Most likely you will find one or two differences between your idea and what is already described in another patent and the patent application that you write should focus on those differences. Most new patent applications are actually only minor improvements on old inventions. However, this is considered a new idea, and therefore it’s prudent to proceed.

Provisional patent applications are sometimes publicly available but can be very hard to find. If the related non-provisional patent application has been published, you can access its provisional application through PAIR under the “Public Pair” heading.

PAIR, or The Patent Application Information Retrieval system, is governed by the United States Patent and Trademark Office, a division of the U.S. Department of Commerce. PAIR offers both public and private information, depending on the information you are able to provide. Public Pair displays information regarding the status of patent applications. Public PAIR only displays issued or published application status. To access Public PAIR, you need to have a patent, application, or publication number that you wish to search.

In PAIR, you need to enter the non-provisional patent application serial number, then look under the "continuity data" tab to find the link to the provisional applications. You will then have to follow up the daughter documents (in PAIR you can download the full file wrapper if you need to). For the PCT, you will have to look in WIPO or ESPACENET, both worldwide patent databases, remembering to use the application number.

Some of the paid-for patent search tools are starting to have searchable PAIR data, meaning that provisional patent applications will be included in there. If you are having difficulty finding the provisional patent application, you can also make a written request to the United States Patent and Trademark Office.

Pending applications also can be searched through the Application Full Text Database, or AppFT (when they have been published). There is no way to search provisional patents on the internet because they are never published online.

Tools and Databases for Better Search Results

To enhance your provisional patent search, consider using the following resources:

  • USPTO Public PAIR: Search for published non-provisional applications and trace back to any related provisional filings through the “Continuity Data” tab.
  • WIPO Patentscope: For international filings that may cite U.S. provisional applications.
  • Espacenet: Offers patent application data from over 90 countries and may list priority claims to provisional applications.
  • Google Patents: Good for identifying similar inventions and potential prior art.
  • Commercial Search Tools: Tools like Derwent Innovation, LexisNexis TotalPatent, and PatSnap sometimes include PAIR data and global provisional links.

Understanding What You Can and Can't Find

A common misconception is that provisional patent applications are publicly searchable. In reality, the USPTO does not publish provisional patent applications unless they are referenced in a later-filed non-provisional application. This means your provisional patent search is limited unless the related non-provisional filing has been made public.

However, if a non-provisional application claims priority to a provisional one, and the non-provisional is published or issued, then the provisional may be accessed via the USPTO’s Public PAIR system. Otherwise, there’s no direct way to search or view active provisional applications through public databases like AppFT or Google Patents.

Provisional Patent Applications Are Not Published

Provisional patent applications are not published because they are only on file at the United States Patent Office for 12 months. After that, a provisional patent application is automatically deemed abandoned. This means that the application will never be published.

The United States Patent Office will only publish non-provisional patent applications. A provisional patent application remains under wraps at the United States Patent Office with only a few exceptions.

A non-provisional application differs from a provisional application in that a non-provisional must contain at least one claim, which is to be examined. A non-provisional application may also claim priority to a prior filed application, which is not permitted with provisional applications.

Exceptions to Provisional Patent Application Secrecy

If a non-provisional patent application is either (1) published or (2) granted as a patent, and the applicant is claiming priority to the provisional patent application, then you may download a copy of the provisional patent application via Public PAIR or request a copy of the provisional patent application.

The Truth About Provisional Patent Application

Sloppily completed provisional patent applications are virtually useless in achieving the intended purpose. Alternatively, it can be used against you later to demonstrate that there was no invention. Also, they can be used to show that the invention had not advanced past the idea stage at the crucial moment of filing the provisional patent application.

It is very important to understand the procedure you need to follow when filing a provisional patent application, so that you don’t fall victim to those who act, with or without malice, to mislead you or any unsophisticated inventors.

The first rule of drafting a patent application is that you need the help of a patent professional, which means a patent attorney or a patent agent.

There are others operating on the internet who are offering provisional patent courses or other products meant to help in drafting a provisional patent application, so you as an inventor, as well as businesses, need to keep an eye out for these unsavory characters.

Not all provisional patent courses are bad, but there are some out there that are being offered by inventors who have little experience with the process, other than filing a few provisional patent applications of their own. In and of itself, this does not make them more knowledgeable about the process of filing provisional patent applications than your average Joe.

Following the advice of someone who is neither a patent attorney nor a patent agent about the correct procedures when filing a provisional patent application is a little like needing surgery. Rather than seeking out a reputable surgeon, you ask a seamstress to operate because they are so skilled at cutting and sewing.

Using Drawings in a Provisional Patent Application

There is a prevailing rumor when it comes to using drawings in a provisional patent application - that they are not necessary. This wholly untrue.

Nonetheless, some course instructors and other patent application service providers may go so far as to say that it is not required to provide drawings in an application. If drawings are necessary to understand the invention, then they are absolutely necessary in a provisional patent application.

Provisional patent applications are not as formal as non-provisional patent applications. The focus of the application can be on the disclosure itself, rather than on the form of disclosure. However, the application needs to be just as complete as a when filing a non-provisional patent application in order to warrant a useful priority date.

Chemical compounds are the only inventions that do not add value by including drawings in a provisional patent application. The formula describes the entire narrative, so it is not necessary to elaborate on the idea with graphics.

The reality is that even a method can be depicted in patent illustrations, and really should be.

A picture can really punch up the effect of a provisional patent application and greatly helps to expand on a written description by providing useful, additional, information about the invention.

A Complete Description

Drafting patent applications aren’t easy. Taking counsel from individuals who aren’t patent lawyers or agents will typically take you off the path leading you to the correct process. There can be horrendous repercussion if you file an incorrect provisional patent application.

Your invention description must meet the specific requirements of 35 U.S.C. 112 first paragraph, when it is filed. You must also meet the requirements of 35 U.S.C. 111, which requires that you include drawings if they are needed to understand the patent application.

The patent office does not actually examine provisional patent applications. All you need to do is attach a provisional patent application coversheet to a few pages and pay the proper fee. You will then have a patent pending will receive an official receipt, documenting the date your application was filed with the patent office.

However, if your disclosure was not complete, you will not be able to establish your priority filing date. You can work with a patent examiner, but they will not grant you the benefit of having an earlier filed provisional application if you disclosed little to no information. Therefore, you have likely compromised all of your rights to obtain that patent.

The Risk of Incomplete Provisional Applications

An incomplete or poorly drafted provisional patent application can jeopardize your future rights. If the initial filing does not sufficiently describe the invention as required under 35 U.S.C. §112, any non-provisional application that relies on it may be denied the benefit of the earlier filing date.

This is especially risky if public disclosures, product launches, or investor discussions have occurred after the provisional filing but before the non-provisional. Without a solid initial disclosure, those events could count as prior art against you.

To avoid this, ensure your provisional includes:

  • A thorough written description of the invention.
  • Any necessary drawings or flow diagrams.
  • Specific embodiments or examples that illustrate the utility of the invention.

Don’t Be Afraid of Provisional Patent Applications

In any invention, you will learn more about the invention during the prototype phase, but before you engage in that phase you do have the ability to describe an invention to satisfy 35 U.S.C. 112.

Many who are new to inventing are surprised to learn that there is an invention worth protecting earlier than you might expect in many cases. It is in these cases, where the inventor has something that can be protected but is continuing with development, where provisional patent applications are most useful.

You should use a provisional patent application to protect your invention or groundbreaking idea at its earliest point. Now that the U.S. is first to file, there is good reason to get your accurate disclosure on file as soon as possible.

Frequently Asked Questions

1. Are provisional patent applications published online? No, they are not published by the USPTO unless referenced in a non-provisional application that is later published or granted.

2. Can I search for a provisional patent filed by someone else? Only if a related non-provisional application has been published. You can then use USPTO’s Public PAIR to view the linked provisional application.

3. What’s the best way to do a provisional patent search? Start with tools like USPTO PAIR, Google Patents, WIPO, and Espacenet. Also consider third-party databases with extended access to PAIR records.

4. Why is my provisional application not showing up in search databases? Because provisional applications are confidential by default and will only appear if linked to a published non-provisional application.

5. Should I get help with my provisional patent search or filing? Yes. Because the scope and sufficiency of your provisional application can significantly affect future patent rights, consulting with a patent attorney is highly recommended. You can find experienced attorneys on UpCounsel.

If you need help with a provisional patent lookup, or help completing and filing a provisional patent application, 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 have an average of 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.