Many inventors express an interest in obtaining a “provisional patent” (yet that doesn’t actually exist). What they’re referring to is known as a provisional patent application. While a seeming trivial word addition, a patent application is not the same thing as an issued patent. A common question from inventors, therefore, is what are the benefits of filing a provisional patent application? As with everything in the law, it depends; there is no cookie-cutter answer because each inventor’s situation is different. While provisional patent applications are not actually examined and would never issue as a patent by themselves, they do offer some unique advantages worthy of consideration. With that in mind, let’s look at three of the most common reasons for filing a provisional patent application.
1. A provisional patent application secures a filing date
A patent application filing date in the United States is of paramount importance. It is the primary manner for determining who invented something first. Because provisional patent application requirements are often much easier to satisfy, they can typically be submitted more quickly (and at a lower cost) than a non-provisional utility patent application.
A provisional patent application can be filed without claims or formal patent drawings, reducing the time and cost of preparing and filing the application. Once that filing date has been established, in almost all cases, no one else will be able to swoop in and claim that they invented it first.
Furthermore, a filing date matters because inventors only have a year window from the first public disclosure or offer for sale to be eligible to apply and receive a patent for that invention.
Consequently, with a filing date, inventors can feel more secure when they start publicly disclosing their invention (and, potentially, starting to promote or sell it).
2. A provisional patent application is an excellent option for an invention still in development
In many cases, an invention can take many months, even years, to develop.
Deciding when the right time to move forward with a patent application can prove difficult. Filing too early may result in the invention disclosure being irrelevant a few months later but filing too late may allow the competition to apply to protect a comparable invention first. A provisional patent application provides a hedge against both of those risks and has the added benefit of remaining unpublished. It permits an inventor to disclose the invention as presently conceived and gives them a year window to identify any changes necessary to “perfect” or improve their invention (as well as come up with potential alternative approaches). An inventor is only entitled to the filing date for the claimed invention that is fully described. Thus, a provisional application that describes 90% of the final invention can lay a valuable foundation for the nonprovisional application that later claims priority to it.
3. A provisional patent application buys inventors more time
Many considerations go into moving forward with a nonprovisional patent application. Patent application filing costs can vary, but relatively straightforward ones are often in the $5,000-$10,000 range (sometimes even more). On top of that, costs to prosecute the patent application, once examined, can double or triple the investment needed to secure the patent ultimately. Filing a provisional patent application allows inventors to buy some time; it provides the unique opportunity to defer these above-mentioned costs for up to a year for a fraction of the cost. In that year, an inventor can do many things, such as improving the technology, refining the “invention,” exploring the market potential, or seeking funding for the invention. In certain instances, that year period may even prompt an inventor to discontinue the patent process (i.e., a complete evaluation indicated any patent likely wouldn’t yield a positive return on investment).
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