Is a Provisional Patent Made Public on Issuance of a Final Patent?

by Marilyn Lindblad

A provisional patent application is a simple, inexpensive way for an inventor to preserve her rights to an invention. It gives the inventor a one-year period to decide whether to proceed with filing a more complex and costly non-provisional application that can mature into an issued utility patent. In some instances, provisional patent applications are made public.

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Patent Basics

A patent is a temporary monopoly issued to an inventor by the United States government. Most patents issued by the U.S. Patent and Trademark Office are utility patents, which protect a product's composition or the way it functions. As an incentive to induce inventors to disclose their inventions to the public, the USPTO grants a 20-year monopoly on the invention. During the years that the patent is in force, no one else can make, use, sell or export for sale the patented technology without the patent owner's permission. The inventor can sell her patent rights or license them to others.

Provisional Application

A provisional utility patent application is like a placeholder for a non-provisional application. A non-provisional patent requires an inventor to submit a complete application that includes a specification listing claims that the issued patent will protect, illustrative drawings of the invention, a written oath signed by the inventor, and other administrative documents. By contrast, a provisional patent application requires only a written description of the invention and, if necessary to understand the invention, one or more explanatory drawings.

Provisional Deadline

An inventor who files a provisional patent application must file a non-provisional application within one year from the date of the provisional patent filing. To extend patent protection retroactively to the date the provisional application was filed, the inventor must reference that filing in the non-provisional application. This gives the inventor's patent application priority over other applicants who claim to have invented the same innovation. If the USPTO grants a utility patent, the published patent will include a reference to the provisional patent application number, and the provisional application will be made available in a publicly accessible database.

Costs

As of February 2012, the USPTO charges a filing fee between $125 and $250 for a provisional patent application. By contrast, filing fees for a non-provisional application containing three or fewer claims range from $190 to $380; the filing fee for applications with four to 19 claims ranges from $315 to $630. However, filing fees are not the only cost involved in getting a patent. The process for obtaining a utility patent is so complicated that many inventors hire a patent agent or patent attorney to write the patent, obtain the drawings and submit the applications. Fees for these experts vary widely, depending on the complexity of the invention. One "ballpark" estimate of a patent attorney's fee ranges from $5,000 to $15,000 or more.