No such thing as a Provisional Patent

I am frequently asked about the benefit of filing a provisional patent application.  I am a fan of provisional patent applications and encourage independent inventors and small businesses to start with a provisional patent application, but it is important to understand what a provisional patent application is, what benefits are provided and perhaps most importantly what a provisional patent application will not do. 

A provisional patent application allows for filing without a formal patent claim, oath or declaration, or any information disclosure (prior art) statement. The beauty of the provisional patent application is that it locks in your application date and provides you with “patent pending” status for much less cost than is associated with a non-provisional patent application. You then have 12 months to decide whether it makes sense to move forward with the expense of filing a non-provisional application.

It is essential to know that the benefit a provisional provides is only with respect to that which is described in the application. A carelessly prepared provisional is a complete waste of time and money. Yes, you can legally say you have a patent pending even with a careless or incomplete provisional patent application, but no benefit will be achieved if and when you ultimately file a non-provisional patent application.

It is also important to realize that a provisional patent will never mature into an issued patent, nor does a provisional patent protect your invention from copying by others. Thus, it is incorrect to think of a provisional patent application as creating some type of provisional patent rights.  There is no such thing as a provisional patent.  You can file a provisional patent application as a low cost first step toward achieving a patent, but the Patent Office will never issue a “provisional patent.”  You will always need to file a non-provisional patent application in order to obtain an issued patent. If your provisional discloses your invention completely and clearly the filing date of your subsequent non-provisional patent application will be considered to be the filing date of the original provisional patent application. If you file a sparse, incomplete or unclear provisional application the filing date of a subsequent non-provisional patent application will NOT relate back to your provisional patent filing date. Therefore, it is frequently said that a provisional patent is good so long as it discloses the invention with the same detail and specificity that is required of a non-provisional patent application.

For more information about provisional patent applications, their benefits and limitations see:

http://www.uspto.gov/web/offices/pac/provapp.htm

I have developed an innovative approach that allows inventors to create and file their own provisional patent applications.  The Invent + Patent Systemenables the inventor to drive the application process and stay engaged throughout the process. By answering a series of specific, legally derived questions, the inventor provides extremely detailed information.  The Invent + Patent Systemcontains both questions and detailed explanation regarding the type of information the question is intending to collect, provides suggested answer templates that you can use to form your answers, and also includes specific examples answers for a variety of technologies taken from issued patents.  The Invent + Patent Systemguides you through the creation of the application to ensure that you provide all of the information required by US patent laws for a complete provisional patent application.  The cost to use the system is $99, and typically the fees due to the United States Patent & Trademark Office are $110.

Good luck inventing!

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