What Does a Provisional Patent Protect
“What does a provisional patent protect?” is a common and most important question to ask when an individual wants to file a patent application.9 min read
“What does a provisional patent protect?” is a common question to ask when an individual wants to file a patent application. This is one of the first and most important questions to ask before pursuing a patent.
The whole purpose of a provisional patent application is to jump-start the patent process without fully financially investing in a patent right away. A provisional patent application also buys the applicant more time to refine their invention and decide whether pursuing a patent is the right move. This application does not cost as much to prepare and file because there are no formalities required and the filing fee is an affordable $130. This is several hundred dollars less than the non-provisional patent application; however, if you plan to obtain an issued patent, eventually you will need to file the non-provisional patent application.
Not only is the filing fee for a provisional patent application less expensive, so too are the attorney fees if you choose to hire an attorney who will help you with your application. With no formalities required for a provisional patent application, a patent attorney doesn't have to work as many hours, and in turn, your attorney fees will not be as high.
A provisional patent application itself is neither a patent nor will it mature into a patent. To be granted a patent, you will have to file a non-provisional patent application. Consider the provisional patent application a stepping stone in the process.
When Should You Use a Provisional Patent Application?
Once you have created a product or idea that you believe does not already exist and would be of benefit to a particular target demographic, you should file a provisional patent application right away. Write down a concise yet detailed description of your invention that would make it easier for others to understand. As soon as you file a provisional patent application, you can claim “patent pending” status on your invention. This status will last for one full year. During that year you can gather more funding to secure a full patent, keep modifying and refining your invention, and ultimately decide if patent protection is the right path for you.
If you are making adjustments to your invention, you definitely should not file a non-provisional patent application first. This application is fixed; you won't be able to make amendments once you have filed the non-provisional patent application. The provisional patent application serves the purpose of securing protective rights for your invention (a.k.a. the patent pending status), while you continue to perfect your product or idea.
Finally, once you have filed your provisional patent application, you won't have to worry about the USPTO doing anything with that application until you decide to file a non-provisional patent application. If you filed the provisional patent application before the non-provisional application, you can have the benefit of priority status because of your previous filing date.
The Importance of a Good Disclosure
We have already discussed that if you do want to secure a patent, you will eventually need to file a non-provisional patent application with the patent office. And if you file your provisional patent application first (which is strongly encouraged), you have a 12-month period to file a non-provisional patent application if you want to maintain the benefit of provisional filing.
After filing the provisional patent application, at some point within the 12-month period after the initial filing of your provisional patent application filing date will be considered the filing date of the non-provisional patent application. When you file a provisional patent application, you can ease your way into the patenting process with affordable fees. The provisional patent application should not be considered a cheap way to get the patent because you still have to file the non-provisional patent application to actually have patent protection.
Trying to cut corners by going straight to filing the non-provisional patent application when your invention is not ready or crafting a sloppy provisional patent application will only do you more harm than good. Take your time creating a high-quality provisional patent application, pay the low filing fees, and spend that 12-month period refining your invention before pursuing a full patent.
What to Expect When Filing Without a Patent Attorney
When you file a provisional patent application, there is no need to include formalities like a patent claim. Instead, you will need to be as detailed as possible when crafting the written description and include a few informal patent drawings of the invention. If you wish to secure priority later in the patenting process, it is important to supply as much information regarding the subject matter as possible. As tempting though as it may be to attach some sketches that you have done on your own, it is always better to invest in some professional illustrations to improve the quality of the application. This is one of the most advantageous ways to expand your disclosure.
The Myth of the Provisional Patent
It is absolutely essential to remember that a provisional patent application won't ever lead to an actual patent itself. Instead, a provisional patent application serves as an economic advantage and a good first step for the rest of the application process. Before moving forward with any applications, make sure you have a robust understanding of what a provisional patent application does and does not protect.
Advantage to Filing a Provisional Patent Application
Once your provisional patent application is filed, it gives you one year to have protective rights on a pending patent until you file a non-provisional patent application. When you file a provisional patent application, remember that a “provisional patent” does not actually exist. Think of a provisional patent as your first step in pursuing a patent and not something that will lead directly to an issued patent.
Disadvantage of Provisional Patent Applications
When you file a provisional patent application, it really serves no purpose other than to give you more time to refine your patent and decide if you are pursuing a full patent. However, later, the provisional patent application could be used against the applicant by someone who wants to prove that their patent never actually existed — that it never made it past the provisional application. Therefore, it is necessary to confirm that you have fulfilled all of the requirements for your provisional patent application and that it is as descriptive and high-quality as possible.
Reasons to File a Provisional Patent Application Before Pursuing a License for Your Invention
If you don't have a “patent pending” status at the very least, you really don't have any tangible invention to license and sell. An idea may hold some worth, but it becomes even more valuable and marketable when it is developed to its full potential. Essentially, when you provide plenty of details on your idea or product in a provisional patent application, that idea or product is more valuable. And once you are issued an official patent, there will be little in question as to whether or not your invention truly is novel and useful. Remember that once you file a provisional patent application, you only have rights to claim you have patent pending status, not that your invention is patented. If you believe your patent application will still require a substantial deal of modifying and that your non-provisional patent application needs professional assistance, filing a provisional patent application is the right move.
Does a Provisional Patent Guarantee Protection of an Idea?
Although the term “provisional patent” is frequently tossed around, always remember that a provisional patent is not a real thing (the provisional patent application is). After filing this application, you can claim “patent pending" status, which again, is not the actual patent and will not lead to a patent without the non-provisional patent application. The “patent pending” status buys you more time, but it doesn't necessarily grant you any legal protection against anyone who tries to copy your product or idea. For example, if someone does copy your idea, you cannot sue them for infringements if you still only have a provisional patent application and nothing else.
The provisional patent application will have value because it sets a filing date that has earlier priority as well as the right to say your idea or invention is “patent pending.”
The Benefits of Provisional Patent Applications
- The provisional patent application is significantly more affordable than the non-provisional patent application.
- If you want an issued patent, you have to file the non-provisional patent application within one year of filing the provisional patent application.
- The provisional patent application can put you ahead of your competitors wishing to patent a similar invention.
- The one-year patent pending status allows you to examine the marketability of your invention before making any costly commitments to obtain an issued patent. If every company or individual you show your invention to is not interested in it, you may decide that it is not worthwhile to spend potentially thousands of dollars to obtain a patent.
- Before provisional patent applications became an option, applicants have to file a complete patent application in order to secure the patent pending status. A provisional patent allows you to stake a claim on your invention.
- Once the patent is issued, it has a lifespan of 20 years starting on the date the non-provisional patent application was filed.
- Provisional patent applications are never published, so you never have to worry about confidentially being compromised. The USPTO does not review the provisional patent application until you decide to file the non-provisional patent application.
- On March 16, 2013, the USPTO imposed a “first to file” rule. In the event that you have a dispute with another inventor, the one who has the earliest filing date will be granted the patent.
- A provisional patent application enables you to set an early filing date.
No matter what protection process you go through for your invention, whether it is a patent, copyright, or trademark, it is vital that you familiarize yourself with what each of these protections provides you with before pursuing any of them. A trademark is designed to protect symbols, names, and words that identify and set apart a certain company, service, or product. Regarding patents, it is often difficult for an application to determine whether their invention qualifies for a utility or design patent, so make sure you get the proper information before pursuing one or the other.
Basically, the purpose of a design patent is to protect an original and ornamental design that will be used in an article of manufacture. It is a kind of intellectual property protection that enables an inventor to protect a useful manufactured article's unique shape or surface ornamentation. Drafting claims is usually the most important and arduous aspect of applying for a provisional patent. While examining your application, the USPTO will search for published applications and prior patents to make sure that your design is novel.
Typically, an invention will qualify for one patent, but there have been rare cases of a patent getting design patent, copyright, and trademark protection.
Will You Get a Patent and Make Money With Your Invention?
Of all the patent applications that are filed every year, roughly half will lead to a patent. Even once an invention is patented, there is no guarantee that the patent will generate profits. An astounding 3 percent of all patented inventions ever bring in money.
Before you decide to pursue patent protection, evaluate whether your invention actually has product potential and what kind of demand there is for your idea or product.
Establishing usefulness is another important step for completing your patent application. If you can prove that your invention produces useful results, it will be easier to describe your invention and add greater quality to your application.
There are five classes of things that can receive a patent:
- Processes and methods (something that takes multiple steps to use or create)
- Machines (any device that produces a result because of the different parts of the object)
- Articles of manufacture
- Compositions of matter
For your patent to qualify, there can be no known prior art (an existing product that is similar to or the same as your invention).
Provisional Patent Application Pitfalls
If you leave out important information about your invention or do not accurately explain the operation of the invention and all of its components, it could ruin your application. If you want to make any revisions, you need to file a new Provisional Patent Application. If you want a foreign patent application, you will need to file for one within a year of filing your Provisional Patent Application.
Do you need additional information related to provisional patent protections, or do you need help with the legalities of your application? Don't hesitate to 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.