Pros & Cons of Provisional Patent Application

By Stephanie Dube Dwilson

When an inventor says that he has a "patent pending," it can mean that he has a provisional patent. Inventors who are low on funds or need a patent in a hurry often obtain a provisional patent. Although an application of a provisional patent is easier to file than one for a full utility patent, the provisional patent is only a step in the direction of obtaining a full patent and is not an end in itself. After one year, the provisional patent is discarded if you do not file for a full patent. While saving money and time are advantages of provisional patents, you should also be aware of possible pitfalls and how to avoid them.

When an inventor says that he has a "patent pending," it can mean that he has a provisional patent. Inventors who are low on funds or need a patent in a hurry often obtain a provisional patent. Although an application of a provisional patent is easier to file than one for a full utility patent, the provisional patent is only a step in the direction of obtaining a full patent and is not an end in itself. After one year, the provisional patent is discarded if you do not file for a full patent. While saving money and time are advantages of provisional patents, you should also be aware of possible pitfalls and how to avoid them.

Cost

The fee to file a provisional patent with the U.S. Patent and Trademark Office is less than the fee to file a utility patent. There is also less paperwork is involved in filing, which means that if you hire an attorney to file your patent, the attorney cost for a provisional patent is usually less than for a utility patent.

File a provisional application for patent online. Get Started Now

Paperwork Involved

Regular patents require an extensive search of prior art, which refers to all information already disclosed to the public in any form about an invention or any other patents or inventions that are similar. Provisional patents don't require any disclosures of prior art. Provisional patents also don't need signed oaths -- and USPTO agents don't examine them, so the written requirements are far less stringent.

Added Protection

If two patent applications are filed for very similar inventions, the USPTO might decide who gets the patent based on either who invented the product first and can prove it, or who filed first. A provisional patent allows you to quickly obtain a patent pending on your product. If you file a utility patent within a year of filing a provisional patent, you can apply the earlier date of your provisional filing to your full patent, which means the provisional patent is documented proof that you were the first to file with the USPTO. However, you'll want to make sure your provisional patent fully describes your invention. Any parts you leave out that are included in your full patent will not receive the earlier dated protection.

Considerations

Inventors relying on a provisional patent have a danger of losing protection if they're too lax on the creation of this temporary patent. If anything was published about your invention more than a year before your utility patent application, the USPTO will reject your application and deny you a utility patent. Also, any parts of your invention that you do not fully describe in your provisional patent application aren't protected. A well-written provisional application should include all the requirements of a non-provisional one if you intend to use it to enable someone to build your invention.

File a provisional application for patent online. Get Started Now
Checklist for Getting a Patent

References

Related articles

How to File a Software Patent

A patent protects the legal right of the patent holder to prevent others from using or profiting from his invention without his authorization. Although copyright law protects software, it is possible to patent software in the United States. Software patents are a type of utility patent. They are controversial because critics contend that they discourage innovation; in fact, many countries refuse to grant software patents. A utility patent expires 20 years after the patent application is first filed with the U.S. Patent and Trademark Office.

How to Acquire a Patent

A patent is a legalized monopoly in favor of the patent holder. The patent holder owns the exclusive right to use, reproduce, and distribute the patented idea, process, product, or model. Acquiring a patent requires the filing of a patent application with the United States Patent and Trademark Office, called the "PTO" for short. The PTO reviews the patent application, typically requests amendments or further explanation, and then approves or denies the patent application. Generally, the PTO approves any patent application that meets the fundamental patent criteria of novelty and utility.

How to Patent Food Ideas

If you have some great food ideas and want the exclusive right to manufacture or sell them in the United States, obtaining a patent on each idea is a smart thing to do. To obtain patent protection, you must file an application with the United States Patent and Trademark Office, or USPTO. A separate patent application must be filed for each food product or recipe idea, and your application must reflect a tested process or product rather than just a vague idea.

Start here. LegalZoom. Legal help is here. LLCs. Corporations. Patents. Attorney help.

Related articles

What Needs a Patent: An Idea or An Invention?

When you have a great idea, you'll be tempted to patent the idea as soon as possible. However, simply having a great ...

How to Sell an Idea Without a Patent

A patent from the United States Patent and Trademark Office provides legal protection to inventors. Once an idea or ...

How to Challenge a Patent

The U.S. Patent and Trademark Office (USPTO) grants patents to allow inventors to enjoy legal monopolies on the ...

Can You Get a Patent for an Idea?

You cannot patent an idea alone. If you develop the specifics of your idea, however, you might be able to patent it. A ...

Browse by category
Ready to Begin? GET STARTED