Patent FAQ: What Is a Provisional Patent?

A provisional application for patent allows filing without a formal patent claim, oath or declaration, or any information disclosure (prior art) statement. A Provisional patent offers several advantages: It provides the means to establish an early effective filing date in a later filed non-provisional patent application. It also allows the term “Patent Pending” to be applied in connection with the description of the invention.

How Does It Work?

A provisional application for patent (provisional application) has a pendency lasting 12 months from the date the provisional application is filed. It is important to note that the 12-month pendency period cannot be extended. Therefore, an applicant who files a provisional application must file a corresponding non-provisional application for patent during the 12-month pendency period of the provisional application in order to benefit from the earlier filing of the provisional application.

Are There Any Limitations?

While applying for a provisional patent often makes sense, as it gets the ball rolling to protect an invention, it does have some limitations.

As outlined by the USPTO, they include the following:

  • The benefits of the provisional application cannot be claimed if the 12-month deadline for filing a non-provisional application has expired.
  • A provisional application cannot result in a U. S. patent unless one of the following two events occur within 12 months of the provisional application filing date: 1. a corresponding non-provisional application for patent entitled to a filing date is filed that claims the benefit of the earlier filed provisional application; or 2. a grantable petition to convert the provisional application into a non-provisional application is filed.
  • Provisional applications for patent may not be filed for design inventions.
  • Provisional applications are not examined on their merits.
  • Provisional applications for patent cannot claim the benefit of a previously-filed application, either foreign or domestic.
  • In order to obtain the benefit of the filing date of a provisional application, the claimed subject matter in the later filed non-provisional application must have support in the provisional application.
  • The non-provisional application must have at least one inventor in common with the inventor(s) named in the provisional application to claim benefit of the provisional application filing date.
  • Amendments are not permitted in provisional applications after filing, other than those to make the provisional application comply with applicable regulations.

How I Can Help

Of course, this post provides only a broad overview of provisional patents. If you are seeking to patent an invention, it is advisable to consult with an experienced intellectual property attorney.

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