What Is A Provisional Patent?
Getting a patent ready to file can be a daunting undertaking, especially if you are pressed for time. That's why many companies wonder how to get a "patent pending," hoping to take advantage of the option of a type of preliminary patent known as a provisional patent. A provisional patent allows you to quickly establish an early filing date for your patent by providing only basic information about your invention. A provisional patent also allows you a full year to complete the standard patent application. Although a provisional patent is a preliminary patent, not a full patent, and a provisional patent can never mature into a full patent without additional filings, a provisional patent offers the same intellectual property protections as a full patent, allowing you to complete other necessary tasks without having to worry that others will steal your invention in the meantime.
When you find the right patent lawyer through Priori Legal to work with you on your provisional patent application, you can seamlessly transition the work you have done together to prepare the formal patent application by the one-year deadline.
Provisional Patents vs. Non-Provisional Patents
Strictly speaking, a provisional patent is not actually a patent. Instead, it is a type of preliminary patent. A provisional patent application simply allows you to start using the term “patent pending” to refer to your invention and to preserve your intellectual property rights while you decide when—and if—you wish to file for a full patent. When you file a non-provisional patent application, all documents must be formalized and ready for review, including formal patent claims and other disclosure documents. A provisional patent application, on the other hand, requires only the specification, which will not be reviewed by a U.S. Patent and Trademark Office (USPTO) examiner.
But only a non-provisional patent, also known as a full patent, ultimately offers your invention full patent protection; the provisional patent application simply back dates that protection to an earlier date once the full patent is approved. If you do not finish the paperwork for a full patent within a year after filing the provisional patent paperwork or if the full patent is rejected for some reason, the provisional patent has no force.
When To Use Provisional Patents
The two main advantages of provisional patents are (1) that it allows you to establish an early filing date for your intellectual property and (2) that a provisional patent is significantly less expensive and time-consuming to file. The United States is a “first to file” country for patents, which means that whoever files for the patent first receives the intellectual property protections, regardless of who originally had the idea. This means that it is critically important to begin filing for a patent - or at least a provisional patent - as soon as possible. And remember that with a provisional patent, you recieve one additional year to perfect your patent application, so there is a lower chance that you will make a mistake when you actually file.
Potential Pitfalls of Provisional Patents
A provisional patent is only worth the effort, however, if it is done correctly the first time. While you only need to specify the technical specs and drawings related to your invention, any inaccuracies will undo the protections that the provisional patent application would otherwise provide. In addition, it is not easy to make major changes to your invention while keeping your intellectual property rights intact after filing the provisional patent application. If you modify how your invention operates or add any new technical features, you must file another provisional patent application to ensure that the changes are protected before filing for a standard patent. This means that the earlier filing date will no longer apply.
The easiest way to avoid such pitfalls is to consult a professional patent lawyer to assist you as you complete the preliminary patent process. Patent lawyers will help you avoid common problems and ensure that your provisional patent affords you the protection you need.
If you want more information about the types of questions a lawyer will ask you during your first consultation, you can review and complete Priori's patent worksheet.
Depending on the complexity of your invention, the cost of filing a provisional patent application can vary significantly. When you hire a lawyer in the Priori network, a patentability search will typically cost anywhere from $400 to $3,000. A provisional patent application can cost from $600 to $3,500. Some of the variance in cost will depend on whether you would like to write the first draft of the application or whether you would prefer your lawyer do so. In order to get a better sense of cost for your particular situation, put in a request to schedule a complimentary consultation and receive a free price quote from one of our lawyers.
Do I actually need a patent lawyer to file a provisional patent application?
Many entrepreneurs believe they can save money by foregoing legal help when filing a provisional patent. While you may save some money initially, tackling a provisional patent applicatoon alone is often a mistake. A carelessly-prepared provisional patent application is a waste of your time and money. Retaining a patent attorney for a provisional patent costs significantly less than it would for a non-provisional patent, and we believe that it is worth the investment to ensure that your provisional patent is filed correctly the first time.
What if I don’t make the one-year deadline for finishing the standard application process?
After you file the provisional patent application, you only have one year to file the corresponding non-provisional patent. If you do not make that deadline, your right to claim the benefits of the provisional patent are lost. Usually, you can still file for another provisional patent, but the legal protections of your invention will only extend back to the filing date of the second provisional patent. It’s also important to note that in some cases you may not be allowed to re-file without technical changes.