This post is the first in a series of informational articles about provisional patent applications: what they are; what advantages they have compared to non-provisional applications; what they cost; what risks and hazards they pose to the unwary.
We start at the beginning.
What is a provisional application for a patent?
First, let’s clarify a potentially confusing bit of terminology that we often hear when people talk about provisional applications. There is no such thing as a “provisional patent.” You cannot apply for a provisional patent. You can file a provisional application for a patent.
A provisional application is a place holder application. It is not examined by anyone at the US Patent and Trademark Office (USPTO), and it can not, by itself, lead to the grant of a patent. Provided it is complete, as described below, it secures the inventor a filing date for the invention when filed at the USPTO.
Why is a filing date important?
A filing date is important because it is evidence that you were in possession of the invention at least as early as the date the application was filed. As of this writing the United States is not a strict first-to-file jurisdiction as are most other countries. What this means is that as between two competing inventors who conceived of the same or substantially similar invention, the first one to file an application for a patent has an advantage in establishing the right to a patent on the invention. Either inventor may still provide other evidence to establish a date of invention before the filing date, but the earlier the filing date, the better for the inventor.
To have a complete application and obtain a filing date, your provisional application must include a full description of your invention and any drawings necessary to understand your invention. You are not required to include any “claims” but it is a good idea to include one broad claim describing the elements of the invention.
What other information is included with a provisional application?
In addition to the written description and drawings, your provisional application will include the provisional application for patent cover sheet form provided by the USPTO. With this form, you identify your application as provisional as opposed to non-provisional and provide the USPTO with the following information: a name or title for your invention; the name and residence address of all inventors; an address for correspondence relating to the application; and payment of the required filing fee.
Once your provisional application is filed, you have “patent pending” status and can indicate that on your product or marketing material. As of the filing date, you have twelve months to file a complete non-provisional patent application.
In our next installment, we’ll begin discuss in detail how to prepare a provisional application.
