Provisional patents offer cost and time advantages, with a one-year term, and promote early commercialization. A non-provisional patent application must be filed within a year, and the earlier application date is used to determine patentability. The filing fees are lower, and the application process is simpler. The non-provisional patent must be adequately supported by the provisional patent application. Additional inventions require separate provisional patent applications or be included in the non-provisional patent applications. Precautions are necessary, and the provisional patent application can be considered prior art if a non-provisional patent is not filed within 12 months.
In the patent world, the patent filing date is one of the keys to the success of the patent application. The party that first files for a patent on a particular invention can claim to be the inventor and reap the rewards thereafter. Provisional patents have been made an option for United States (US) patent filings since 1995. They offer cost savings, time advantages, term benefits, and promote early commercialization. They were designed to put US patent filings on an equal footing with foreign filings.
Provisional patents are issued for one year. Within that year, a non-provisional patent application must be filed with the United States Patent and Trademark Office (USPTO). When the non-provisional patent is examined, the application date of the provisional patent will be used to determine patentability. If a patent is granted, the 20-year patent term starts from the date of the non-provisional patent application.
A provisional patent application requires a significantly smaller financial investment. The filing fees are lower and the application process itself is simpler. The provisional patent application does not have as many requirements as the complete application. For example, no formal complaints, oaths, or declarations are required. Also, no disclosure of information or prior art statement is required.
To claim the benefit of the earlier application date, the non-provisional patent must be adequately supported by the provisional patent application by a complete description of the invention and complete statement of the scope of the invention. Only the common object between the two applications will enjoy the earlier date of the provisional patent application.
In addition to the cost and time benefits of applying for a provisional patent, the invention can be commercialized and referred to as “Patent Pending” in any descriptive material. As such, an inventor could file a provisional patent application while building investor interest or raising other research funding. Additional inventions and claims discovered in a 12-month period beyond the original fill would require separate provisional patent applications or be included in the non-provisional patent applications without the benefit of the earlier patent application date.
Some precautions are a must. If a non-provisional patent is not filed within 12 months, the provisional patent application can be considered prior to art. Also, non-provisional patents are not issued for design patents. Provisional patent applications may be converted to non-provisional applications without a separate application by filing an acceptable application for such a conversion. The previous provisional application date is lost with this procedure.
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