Provisional Patent Applications

A provisional application is a patent application, which establishes an official United States patent application filing date for the invention and permits the term “Patent Pending” to be applied in connection with the invention. Under United States patent law, a provisional application for patent is a type of national application for patent filed in the United States Patent and Trademark Office, but which does not mature into an issued patent unless further steps are taken by the applicant.

It is a patent application with a specification, i.e. a description, and optional drawing(s) of an invention, but does not require a formal patent claims, inventors’ oaths or declarations, or any information disclosure statement (IDS). Furthermore, because no examination of the patentability of the application in view of the prior art is performed, the U.S. Patent and Trademark Office fee for filing a provisional patent application is significantly lower than the fee required to file a standard non-provisional patent application. A provisional patent application can establish an early effective filing date in one or more continuing patent applications later claiming the priority date of an invention disclosed in earlier provisional applications by one or more of the same inventors.

One popular use of a provisional application is to document and “lock in” potential patent rights while attempting to obtain sponsors for further development (and for more expensive patent applications). This tactic may permit an inventor to defer major patent application costs until the commercial viability (or futility) of the invention becomes apparent. However, wise investors consider provisional applications in view of the long road to potential patentability, not to mention the limitations that may be defined by the prior art.

A provisional application automatically becomes abandoned when its pendency expires 12 months after the provisional application filing date by operation of law. Applicants must file a non-provisional application claiming benefit of the earlier provisional application filing date in the U.S. Patent and Trademark Office before the provisional application pendency period expires in order to preserve any benefit from the provisional-application filing.