What If a Full Patent Is Not Approved and You Have a Provisional Patent?

By Laura Payet

What If a Full Patent Is Not Approved and You Have a Provisional Patent?

By Laura Payet

If you've invented something unique and revolutionary, a patent offers you the best option for protecting your invention and preventing others from copying it and profiting from it. A full patent grants an invention's creator the exclusive right to prevent others from making, using, or selling that invention for a period of 20 years from the date the patent application was filed.

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The United States Patent and Trademark Office (USPTO) grants patents for inventions that are new, useful, and nonobvious. But the patent process is lengthy and complicated, and the USPTO can take more than a year to examine an application and determine whether to award a patent. Filing a provisional patent application allows you to establish an early filing date for your patent application without having to complete the full, nonprovisional application. However, a provisional patent expires one year after you file the application whether or not you obtain a full patent.

What is a provisional patent?

A provisional patent secures your place in line for patent review with the USPTO and provides enough information to identify your work so that another inventor's application won't take precedence over yours. Although a provisional patent conveys no rights to exclusive use of your invention, it does allow you to use the phrase "Patent Pending" to describe it. This phrase puts anyone who might copy your work on notice that, if you are eventually granted a patent, they may be liable for infringement starting on the date you filed your provisional application.

How long is a provisional patent valid?

A provisional patent is valid for 12 months from the date you filed the application. That 12 month period allows you time to solicit investment in your idea, conduct more research, and complete a full, nonprovisional application for a patent. Note that the USPTO does not examine provisional patent applications, so a provisional patent does not lead to an actual patent unless you file a full application during the 12-month period. A provisional patent expires at the end of the 12 months, regardless of whether the USPTO grants you a full patent.

How do you obtain a provisional patent?

A provisional patent application is much simpler than a full application. The basic requirements are a description and drawings of your invention, a list of the inventors involved, and the filing fee. Yet, even though a provisional patent application is relatively simple, you should take care to make it precise enough that the USPTO can properly identify your work. You can prepare and submit your provisional patent application yourself or seek the help of an online legal service provider.

It bears repeating, however, that your provisional patent doesn't actually grant any right to prevent others from copying your work. Therefore, once you've submitted your provisional application and established an early filing date, you should begin work on the next step—a full, nonprovisional patent application. If your full patent application was not approved and your provisional patent has expired, you may revise your full application and reapply. If the USPTO denies your application twice, you may appeal the decision.

Don't let others capitalize on your hard work. Protect your rights.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.