Deciding whether to file a provisional patent application is an important step for inventors who are looking to protect their innovations while their non-provisional (final) patent application is being prepared.
A provisional patent application offers a cost-effective way to establish a filing date and secure a 12-month period to further develop one’s invention, seek funding or assess market potential before completing the more costly and complex non-provisional patent application process.
The basics
The primary benefit of a provisional patent application is its establishment of an early filing date for an invention’s non-provisional patent application. The United States operates on a first-to-file system. Filing a provisional application secures an invention’s “place in line” when it comes to the risk of prior art, which can be pivotal if competing inventions are being developed.
The 12-month period after filing a provisional patent provides inventors time to refine their invention and prepare their non-provisional patent application without risking that place in line. This period can also be used to conduct more comprehensive patent searches or to explore licensing opportunities without the risk of losing patent rights as well.
It is additionally worth noting that filing a provisional application allows inventors to safely disclose their invention to potential investors, business partners or others within the industry, as it secures the invention under “patent pending” status. This status can help in negotiating deals or securing funds based on the invention without risking one’s rights in a “here is my invention, feel free to infringe on my ideas” sort of way.
It’s important to underscore that a provisional patent does not mature into a final patent application on its own. Inventors must file a non-provisional patent application within 12 months to benefit from the early filing date established by the provisional application. Failure to do so results in the abandonment of the provisional patent benefits in question.
While filing a provisional patent application doesn’t make sense for every inventor – this option isn’t available for design patents, for example – this opportunity is generally wise for most.