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Provisional Patent Applications and How They Work?

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You may have heard about provisional patent applications from an attorney, patent agent, or maybe just through a colleague.  They are a necessary step in the road to obtaining patent protection and also in growing your business.  In this article we review what a provisional patent application is and what it can contribute so you can achieve your entrepreneurial pursuits!

Provisional patents: What are they?

A provisional patent has been offered by the United States Patent and Trademark Office (USPTO) since 1995 to provide inventors an affordable option to file their patent application in the United States and achieve patent pending status.

The main goal of a provisional patent is to establish as early of a filing date for an invention as possible.  The provisional patent application has a 12 month period that can’t be extended.  So you must file for a nonprovisional patent application or Patent Cooperation Treaty (PCT) application   before the 12 month period has expired.   The  PCT assists applicants in seeking patent protection internationally for their inventions.   The United States is a first person to file patent system, priority is given to the inventor that files the earliest.  Hence, the US is  a first to file system.

The main advantage of the provisional is that it allows an inventor a simple way  to secure their position in line at the patent office. A provisional patent application is a simple patent application with less forms, and is significantly less expensive than a U.S. nonprovisional.  A provisional patent application should have at least  one claim so that it will be accepted as a priority document in all the countries who are members of the PCT.  A U.S. nonprovisional will have multiple claims and more extensive detail about the invention.

In the 12 month term of a provisional patent, the entrepreneur or inventor can explore the market opportunity for the invention.  Provisionals give you patent pending status which you can label on your products but do not be confused as they do not provide any patent protection.  Provisionals, are applications only.  This means that after the 12 month period you must file the U.S. nonprovisional application or a PCT application.  The  U.S. nonprovisional which will be examined against a set of criteria at the USPTO and eventually if the patent passes the test, be allowed and exclude others from making, selling or using your invention.

So if a provisional offers limited protection and will never be issued as an official patent, then why would you need one?  The main strategy in filing a provisional patent is to secure your position as the first one to file for your invention and during that 12 month term build your product, attract investment, or begin distribution of your product.  This strategy allows for the least amount of capital invested, most likely by you, into your startup which decreases any investment lost in case there is no market for your invention.  In other words, no one wants to buy the resulting product from your invention and therefore there is no market for it.  Remember that only 1 out 10 startups actually make it.

If you are concerned about the cost for a provisional patent application, be rest assured that Menlo Park Patents’ competitive pricing can help you in this area.  Fees at the USPTO for a provisional are a few hundred dollars, and are cheaper if you qualify for micro entity or small entity status.

Check out our provisional patent application packages here!