Do I Need to File a Provisional Patent Application?
The sort answer is “No”. A provisional patent application is not needed in order to obtain a granted patent. In fact, we generally recommend that if you have the money for a full non-provisional patent application, you skip the provisional. There are, however, certain instances when filing a provisional patent application may be helpful.
What is a provisional patent application?
A provisional patent application is a patent application that does not offer any sort of patent protection for your invention. It merely serves to secure a filing date for a full non-provisional patent application.
This filing date is secured for 1 year. For example: If you file a provisional patent application for your invention on May 9, 2022, then you have until May 9, 2023 to file a full non-provisional patent application on your invention. After you file your full non-provisional patent application, your effective filing date will be May 9, 2022.
Provisional patent applications are not reviewed “on the merits” by the USPTO and are not published. This means that many of the requirements of a full non-provisional patent application (novelty, non-obviousness, claim structure, drawing standards, etc.) do not apply to provisional patent applications.
When is it helpful to file a provisional patent application?
It is helpful to file a provisional patent application in the following scenarios:
You’re really short on funds.
If you truly can’t afford the fees for filing a full non-provisional patent application, a provisional patent application is a cheaper option to secure a filing date. You’ll then have 1 year to come up with the funds for filing the full application.
You just want to be patent pending.
Filing a provisional patent application allows you to say that your invention is “patent pending'“. If you just need to be patent pending for the lowest cost possible, this is the way to do it. Keep in mind you will only be patent pending for 1 year.
You need to beat your competition for a filing date.
If you’re afraid your competition is about to file a patent application on a similar invention, a provisional patent application provides a quick way to secure a filing date. You then have some time to draft a more well put-together full non-provisional patent application.
You’re still developing your invention.
Sometimes inventors want to secure a filing date for their patent application but are still tweaking their invention. If this is the case for you, a provisional patent application allows you to secure a filing date and then make tweaks/modifications to your invention over the course of 1 year. Keep in mind that any modifications you make to your invention will not receive the priority date of the provisional.
For example: Let’s say you invent the ballpoint pen. You file a provisional patent application claiming a writing utensil with an ink reservoir, a casing surrounding the ink reservoir, and a ball tip extending from the casing. Later on your decide to implement a spring-loaded button that causes the ball tip to extend from and retract into the casing (i.e. a click pen). The ink reservoir, casing, and ball tip features of your invention get the filing date of your provisional patent application. However, your new feature will get the filing date of your non-provisional patent application.
Navigating these different filing dates can be confusing. If you are considering filing a provisional patent application and then making updates to your invention, we recommend reaching out to us using the contact form in our About Us page. We’ll be happy to answer any follow-up questions you may have.