In the world of inventions, protecting your ideas can be crucial. Provisional patent applications can play an important role for establishing priority in your inventions.
A provisional patent application is a legal document filed with the United States Patent and Trademark Office (USPTO). It provides a form of “patent pending” status for your invention.
But what are the benefits of filing a provisional patent application? Why should inventors consider this route?
Whether you’re an inventor, entrepreneur, or small business owner, provisional patent applications can play an important role to help you protect your inventions effectively. Schell IP can help you write and file a provisional patent application as part of a more holistic innovation protection strategy.
What is a provisional patent application?
A provisional is a type of patent application filed with the USPTO that acts as a placeholder for the priority date associated with your invention. It’s a preliminary step that inventors can take to secure an early filing date for their invention.
Unlike a non-provisional patent application, a provisional patent application doesn’t lead to a granted patent on its own. Instead, it serves as a placeholder, giving you a 12-month period within which you may file a non-provisional patent application. During this time, the invention can be labeled as “patent pending.”
3 Key Advantages of Filing a Provisional Patent Application
Filing a provisional patent application comes with several key advantages. These benefits can make it an attractive option for inventors, startups, and small businesses. Three advantages of provisional patent applications include:
- Establishes an early filing date
- Offers cost-effectiveness and simplicity
- Allows the use of the term “patent pending”
Separately, if later you choose to or expect that you may wish to forgo the patent process and maintain your invention as a trade secret, when you abandon your provisional patent application (unlike a nonprovisional patent application in many cases), it is never published or otherwise made public.
1. Establishing an Early Filing Date
Securing an early filing date is a major advantage of provisional patent applications. This is because the United States operates on a “first to file” system.
In this system, the first person to file a patent application for an invention has the right to the patent, regardless of if the application is provisional or non-provisional. Therefore, filing a provisional patent application can help inventors stake their claim early then, during the 12-month period, they can refine and finalize the invention without worrying about losing protection.
2. Cost-Effectiveness and Simplicity
Provisional patent applications are also cost-effective. They are cheaper to file than non-provisional patent applications, making them a good option for inventors on a budget.
Moreover, the application process for a provisional patent application can be simpler. While to properly maintain priority in the invention it should be drafted with expert patent lawyer support, a provisional patent application doesn’t require formal patent claims, making it less daunting for first-time filers. Regardless, we always recommend consulting a patent attorney to help with any patent application writing and filing process.
3. “Patent Pending” Status and Implications
Once a provisional patent application is filed, the invention can be labeled as “patent pending“. This term can deter competitors from copying the invention. This can also serve to augment the value of your company or invention, as acquirers may have more opportunity to expand the protection around your concept post-acquisition.
Moreover, it can increase the perceived value of the invention. This can be beneficial when seeking investors or licensees because it shows the ability to protect the intellectual property later on.
“Patent pending” can also be a strong marketing claim, especially if there is a close competitor to your invention. A patent attorney with experience in patenting ideas for startups and businesses can help you understand how you can use these claims to further your business.
The Provisional Patent Application Process
The process of filing a provisional patent application is simpler than filing a non-provisional patent application, however we always recommend consulting a patent attorney to help with the writing and filing of your patent applications. Filing a provisional patent application involves preparing a detailed description of the invention and submitting it to the USPTO, both of which your attorney can help with.
Required Documentation and Descriptions
The provisional patent application requires a written description of the invention or idea. This description should be as detailed as possible. It should fully disclose the invention and how to make and use it. Poorly drafted patent applications, even provisional patent applications, can mislead inventors and startup founders into relying on protection that doesn’t really exist.
Drawings or diagrams can be included to enhance understanding. However, they are not mandatory unless necessary to understand the invention. (In practice, only in extremely rare situations are patent figures omitted, even in a provisional patent application.)
The application should also include the names of all inventors and an optional cover sheet.
The Role of Drawings and Diagrams
Drawings and diagrams can play a crucial role in a provisional patent application. They can help clarify complex concepts and provide a visual representation of the invention.
While not always required, they can enhance the understanding of the invention. Therefore, including them can be beneficial. We recommend consulting your patent attorney to better understand if drawings or diagrams would benefit your patent application.
Converting to a Non-Provisional Patent
A provisional patent application is not examined by the USPTO. Instead, it acts as a placeholder for a non-provisional patent application.
Inventors have one year from the filing date of the provisional application to file a non-provisional application. If not done within this period, the provisional application will expire. You should work with your attorney to finalize and file your non-provisional application.
Common Misconceptions and Pitfalls
One common misconception is that provisional patent applications become granted patents by the USPTO. In reality, they are not examined for patentability and do not result in a granted patent. You should always consult a patent attorney when filing a provisional or non-provisional patent application to ensure the highest chance of getting your patent application approved and granted.
Another pitfall can be insufficient detail within the provisional patent application especially, based upon misunderstanding of the required inclusions within the patent application, which can lead to issues later when trying to convert to a non-provisional patent. You should consult a patent attorney and disclose as much information about your idea as you can so they can include the necessary details within your application.
Lastly, many inventors unfortunately fail to convert their provisional patent application in time. If not converted within the 12-month period, the provisional patent application becomes abandoned and the early filing date is lost.
Maximizing the Value of Provisional Patents
Provisional patent applications can be a valuable tool for inventors and businesses. They provide a more affordable way to secure an early filing date and protect your invention while you refine it or seek funding. However, to maximize their value, it’s important to understand their limitations and requirements.
With careful planning, attention to detail, and the help of a patent attorney, provisional patent applications can be a strategic part of your intellectual property portfolio, giving you a competitive edge in fast-moving industries.
