Provisional Patent Applications

I have an idea that needs some sort of protection, should I get a provisional patent? The term provisional patent is actually a misnomer as the United States Patent & Trademark Office (USPTO) does not issue provisional patents. However, you may submit your application to the USPTO as a provisional patent application. Design inventions may not be submitted as a provisional patent application. When your application is successfully submitted to the USPTO, your application is accorded a filing date.

Why is a provisional patent application important?

Well for starters, a submitted provisional patent application evidences that the invention was developed by the date of submission to the USPTO. It is also a price effective way for obtaining patent pending status for your product. When a provisional patent application or a non provisional (utility) has been submitted to the USPTO, the product has patent pending status. The filing fees for a provisional patent application with the USPTO are $125 for a small entity whereas filing a non provisional (utility) application is slightly more than $500 at a minimum. Additionally, in most instances, drafting a provisional patent application requires less time than drafting a non provisional (utility) application. Therefore, if the application needs to be submitted quickly, a provisional patent application may be the most suitable.

A drawback of filing a provisional patent application is that the USPTO does not examine the application. So until a utility application is filed, your application sits. When the utility application is filed, the filing date of that application is the date of the provisional application. The utility application must be filed within 1 year of filing the provisional application or else the benefit of filing the provisional application is lost. That 1 year period cannot be extended. Therefore, the real advantage of filing a provisional patent to a small entity is the ability to garner patent pending status at a lower price point and commence evaluating and possibly marketing the product as soon as possible. It allows the inventor to explore the market and determine if the idea may be viable, in which case further investment would be required. If the idea is not viable, the inventor has not lost much capital and can proceed to a new idea.

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