PROVISIONAL APPLICATION FOR PATENT

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A provisional application for patent establishes your priority filing date with the U.S. Patent and Trademark Office (USPTO) and lets you immediately start labeling your invention "patent pending."

With LegalZoom’s Provisional Application for Patent service, you get:

  • Completion of your provisional application for patent
  • Digitizing and color adjustment of your technical drawings
  • Electronic filing of your application with the U.S. Patent and Trademark Office
  • Optional review of your application by a patent agent or attorney (additional fees apply)

Common questions

What is a provisional application for patent?

A provisional application for patent is a way to establish and protect a "date of invention" (or "priority filing date") for one year. The provisional application for patent was created to provide inventors with an inexpensive way to begin protecting their inventions. The provisional application for patent gives you 12 months to prepare a full utility patent application, during which time you can label your invention "patent pending." Provisional applications apply to utility patents only, not design patents.

A provisional application for patent lets you establish an early effective filing date for your invention without formal claims, oath, declaration or information disclosure (prior art) statement. However, a provisional application for patent must include a written description and drawings (if needed) sufficient to enable one skilled in the field to practice the invention. For a provisional application to get the inventor an early filing date, the invention claimed in the provisional application must be similar enough to that in any corresponding nonprovisional application for the examining attorney to determine that the two applications refer to the same invention. If either of these requirements–sufficient disclosure and sufficient similarity–are not met, the provisional application's priority filing date will be lost. Also, for an applicant to take advantage of this priority filing date, the corresponding nonprovisional application must be filed within 12 months from the provisional filing date; no extensions or renewals are possible.

Why should I file a provisional application for patent?

A provisional application for patent is a great first step towards protecting your invention. It establishes an early filing date for your invention while you put the finishing touches on it, work up your nonprovisional patent application, seek funding and do market research. Having a provisional application on file also means that you can disclose details about your invention with everyone on notice that your invention is "patent pending." (You can use the "patent pending" label for the entire 12-month provisional period, or for the entire examination period of your nonprovisional utility application.) Also, provisional applications are not published or disclosed by the USPTO so your invention's secrecy is not compromised.

Provisional applications are less expensive and easier to file than nonprovisional patent applications, can be done quickly, and should be done in advance of an invention's public disclosure (although following a disclosure is still useful). Most importantly, filing a provisional application establishes an official filing date with the USPTO–and now that the PTO is moving from a "First-to-Invent" to a "First-Inventor-to-File" system, a filing date will be the single most important determinant of who gets a patent.

With a provisional application on file, you can feel safe promoting your invention. Plus, if you significantly improve or change your invention after filing your provisional application, or decide not to go forward with a nonprovisional application, the lower cost and effort of a provisional application means that you haven't gone through a more costly and difficult process prematurely or unnecessarily. Finally, multiple provisional applications can be combined into a single, later-filed nonprovisional application, as long as your first provisional application sufficiently details the invention that ultimately appears in your nonprovisional application, leaving you eligible for your earliest filing date.

What is the difference between a provisional application for patent and a nonprovisional patent application?

A provisional application for patent is a simple and inexpensive way to begin protecting your invention while you fully flesh it out, decide whether to pursue an nonprovisional utility patent application, and do any market testing you may need. Both a provisional application for patent and a nonprovisional patent application apply to an invention that could ultimately become the subject of a utility patent (provisional applications are not available for design patents). A provisional application secures a priority filing date for a corresponding nonprovisional patent application for the same invention that is filed within 12 months. Once a provisional application is filed, an inventor has exactly one year to file a nonprovisional application for the same invention. If that date is not met, the provisional application for patent expires. This means the inventor loses the right to that filing date.

However, if the invention has been disclosed, sold or otherwise made public prior to the filing of a provisional application, the date of disclosure starts a more serious 12-month clock. If no nonprovisional application is filed within that time, the ability to patent that invention is lost to everyone, including the inventor.

A nonprovisional patent application also establishes an invention's filing date (unless it claims the benefit of an earlier filed application, such as a provisional application) which can also function as the date an invention was "reduced to practice," a requirement for any patent to issue. Filing a nonprovisional application starts the official examination process with the USPTO to determine if an invention should receive a patent.

How do I turn my provisional application for patent into a nonprovisional application?

An applicant who files a provisional application for patent must file a corresponding nonprovisional patent application within 12 months to benefit from the provisional filing date. The corresponding nonprovisional patent application must specifically refer to the invention contained in the provisional application and to that provisional application itself.

The USPTO will then compare the nonprovisional patent application with the earlier-filed provisional application. If the subject matter of the descriptions is determined to be similar enough in both applications, the USPTO will grant the applicant the provisional application's earlier filing date for any patent that issues.

Alternatively, an applicant can convert a provisional application for patent to a nonprovisional application. This option saves the applicant little effort, however, and virtually no money. Furthermore, the provisional application's filing date is lost and the filing date for any patent that issues will be the date of conversion.

Sample documents

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Your final forms, documents and filings may differ depending on your state.

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