What Is a Provisional vs. Non-provisional Patent?

A provisional patent application allows you to begin securing patent rights while a non-provisional patent application is the first step toward a legally recognized patent. Some inventors refer to the provisional patent application as a provisional patent, but provisional patents don't exist.

A provisional patent application is meant to help protect your idea and give you time to perfect it. Once you have the design and function ready, you can apply for the non-provisional patent.

For many inventors, applying for a provisional patent application is the first step. When you have an idea, you can immediately submit the provisional patent application. This doesn't require a lot of work or research. However, it's smart to do a search to ensure your idea doesn't exist. If you find that a patent for something similar does exist, you will never qualify for a non-provisional patent.

A provisional patent application only requires basic information and images. The benefit of applying for the provisional patent is that it holds your place in line. It's important to remember that without submitting a non-provisional application, your idea will never receive a patent. There is no such thing as a provisional patent, only a provisional patent application.

Filing either a provisional or non-provisional patent application provides the inventor with instant patent-pending status.

Why Is a Provisional vs. Non-provisional Patent Important?

Both provisional and non-provisional patents protect your idea. With a provisional patent application, you also hold your place in the queue should you file for a non-provisional patent. While choosing to file a provisional patent will extend the total patent pending time, it should be seen as a benefit. When you first come up with an idea, it often takes time to develop and perfect it.

Non-provisional patent laws require inventors to submit an application for a patent within a year of showing the product in any way. This includes in print, at a trade show, or images of the item. If you don't submit within that time frame, the chance to file for a patent is gone.

When you file a provisional patent application, it gives you another 12 months to make your idea better. Many inventors struggle to get a perfect prototype completed within the one-year period. But provisional patent will buy some extra time to work out the kinks.

During the provisional patent period, you have a year to fix anything that doesn't work before you apply for a non-provisional patent.

Reasons to Consider Using a Provisional vs. Non-provisional Patent

The main reason that inventors file a provisional patent application is to get more time. The date of the application establishes when you file and start the process of applying. It will also expire after one year. Another reason that inventors choose this route is because it's a lot cheaper.

Filing a non-provisional patent application is more expensive, and it takes years to go through the approval process. Even the application fee for a non-provisional patent is much higher. The cost is $800, while a provisional patent application is $130.

Both applications require drawings that show the invention and how it works. But the image requirements of a provisional patent application are much simpler. Informal drawings are perfectly acceptable with a provisional application.

A provisional patent application protects your idea but doesn't require as much of an investment. The main benefit of choosing this option is the priority date on the application. Provisional patent applications also don't require the extensive claims section nor do they require submission in a specific format. The USPTO doesn't examine provisional patent applications.

When filing a provisional patent application, most inventors rely on an experienced patent lawyer to meet the requirements and to prevent delays. A mistake that an inventor makes could cost a lot of money and waste time. Some of the differences between a provisional and non-provisional patent application include:

  • A higher filing fee for a non-provisional patent application.
  • An inventor might be able to submit a provisional application on his or her own. But a non-provisional application usually requires a lawyer.
  • A non-provisional patent application requires an information disclosure statement, declaration and patent claims, while a non-provisional application does not.
  • Filing a provisional patent application requires submission of a non-provisional application within a year.
  • Provisional patent applications are not public records. Instead, they are confidential documents that only USPTO officials can access.
  • Only a non-provisional patent application will result in the issuing of a patent.
  • When you file a non-provisional patent application, the filing date will mark day one of the 20-year patent term, while a provisional patent application filing date does not factor into the 20-year term.

Reasons to Consider Not Using a Provisional vs. Non-provisional Patent

You might choose to go straight to a non-provisional patent for several reasons. Some inventors spend time perfecting their ideas before releasing them to the public. Others don't want to prolong the process by filing a provisional patent application. Submitting a non-provisional patent application first will start the legal process faster. A provisional patent application will never get you a non-provisional patent. It only gives you an extra 12 months to work on the idea.

At the end of the 12 months, the patent will expire. If you submit an application for a non-provisional patent before the 12 months end, your documentation will go into review by the United States Patent and Trademark Office (USPTO). This process prevents other people or companies from stealing your idea.

The 12-month conversion deadline for provisional to non-provisional patent status is firm. No extensions or exceptions available are available. If you're in a hurry to get patent approval, filing a provisional application is not the right way to go. This process actually slows the process down, granting the applicant an extra year to file.

Deadline

When you have an idea, the deadline for filing a provisional patent application depends on when you release it publicly. Releasing an idea publicly includes writing about it or publishing photos. You may also go to a trade show to look for investors, and this counts as a public release. If you never show the concept, you can wait as long as you want. You do run the risk of someone else coming up with the idea in the meantime, though.

Once you show the idea to the public, you have one year to submit either patent application. If you don't submit it in that time, you lose the chance to ever do so.

Upon filing a provisional patent application, you have 12 months to file a non-provisional application. One year after the date you file, your provisional patent application expires.

What Could Happen When You Do or Don't Do a Provisional vs. Non-provisional Patent?

Both types of patents protect your idea. An idea must be novel (new and original), non-obvious, and useful to qualify for a patent. Provisional patents don't go through reviews, so it's not as important. However, it's still a waste of money and time to file an application for something that doesn't meet those requirements.

If you don't file either a provisional or non-provisional patent application, there are a couple of risks. Inventors who show their products in a public place could lose the chance to ever file for a patent. Laws require the filing of patent applications within 12 months of introducing it publicly.

Another risk of not filing an application is having your idea stolen. It is nearly impossible to prove you had an idea first if you don't have documents to back it up. You can use a provisional patent application as proof that you came up with an idea first.

If you file an application for a provisional patent, you can only use the provisional status to apply for a non-provisional utility patent. Some inventors find that during the 12-month provisional period, they determine that their invention falls under the design patent guidelines. If this is the case, you will have to submit an application for a design patent that doesn't relate to your provisional utility patent application.

Common Mistakes

The most common mistake inventors make is in thinking that a provisional patent automatically converts to a non-provisional one. This is not the case, as a provisional patent doesn't actually exist. All the provisional patent application does is protect your intellectual property for one year while you get ready to file the non-provisional application. If you don't do so, your provisional application expires. This also puts you at risk for losing the option to patent your idea.

Another mistake is hurrying to file a provisional patent application without doing a search. Competing patents aren't always easy to find. You should take the time to search thoroughly and ensure your idea meets the criterion.

Frequently Asked Questions

  • What is a provisional patent?

A provisional patent actually doesn't exist. Inventors file provisional patent applications, but this does not grant a patent. The process extends the time frame for filing a non-provisional patent application, which takes longer and costs more.

  • What happens if I don't file a non-provisional patent application?

Twelve months after the filing date of a provisional patent application, the application expires. If you don't file an application for a non-provisional patent during that time, the opportunity may be gone. During the lapsed period, your idea is no longer protected. Other people or companies can develop their own versions of your product and file for a non-provisional patent. Then it is your word against theirs on who came up with it first.

  • What are the benefits of a provisional patent application?

For many inventors, a provisional patent application is like a grace period. During that year, you can make sure your idea is flawless before you submit the final application. You can also use the time to raise money from investors to file for a non-provisional patent. This process offers protection for your idea for 12 months.

  • How long do I have to file for a patent?

After filing a provisional patent application, you have one year to file a non-provisional patent application. Some people choose not to file a provisional one. If this is the case, you have one year from the date you release your product or idea on a public scale.

  • Is it typical to file a provisional patent application first?

The standard first step in patent protection is searching for something similar in the patent database. You'll waste time and money filing either type of application on an idea that isn't patentable. Filing a provisional patent isn't typical for most inventors. This is because it doesn't move you forward with the review process through the USPTO. However, it is a helpful step if you aren't ready to file your non-provisional patent application.

It's best to move forward with the non-provisional application unless you have a legitimate need to delay the process.

Steps to File

1. Keep careful notes

Whenever you make a change to your idea, keep track of it. The application requires extensive documentation. This helps reviewers make sure the idea really is yours.

2. Build a prototype and test it

You'll have to show how your idea works to qualify for a patent.

3. Search the patent database thoroughly

It's crucial to see if something similar exists before filing for a patent. Hastily filing a patent application is a waste of money if someone already came up with your idea.

4. Prepare and submit your application to the USPTO

Follow the detailed instructions and don't leave anything out. Include all notes you've kept.

A provisional patent application isn't as difficult as the non-provisional version. If you need more time to make sure your product is perfect, it's a good option. However, filing for a non-provisional patent is a necessary step in the process.

If you have additional questions about provisional versus non-provisional patents, the lawyers at UpCounsel's marketplace can help you. With an on-average legal experience of 14 years, lawyers on UpCounsel have provided their skills and expertise to businesses such as Google, Charming Charlie, and Twilio. Learn how they may assist you in the provisional or the non-provisional patent process.