Exploring Patents: What is a Provisional Patent?

Ever had a light bulb moment, an invention idea so brilliant it could revolutionize the world? But then there’s that little voice in your head whispering about copycats and competitors. It’s like having the winning lottery ticket but being afraid to claim it.

This is where a provisional patent comes into play. Think of it as a temporary shield, protecting your ingenious idea while you perfect its details and assess market potential. Sounds handy, right?

However, before diving headfirst into the provisional patent’s protective measures, we must explore what exactly lies beneath its surface: benefits, risks, process, transitioning to a non-provisional patent application; and debunking common misconceptions.

Stick around! You’re about to discover how this underdog can help protect
your brainchild from those lurking shadows.

Understanding the Concept of a Provisional Patent

A provisional patent application is a form of legal documentation to protect an invention filed with the United States Patent and Trademark Office (“USPTO”) that grants the Applicant a filing date or priority date. A priority date is important in a first-to-file U.S. Patent System. It allows the Applicant to have priority in the invention for patent protection over any other subsequent applicants of similar inventions.

Without a provisional filing, any patent filings of similar inventions could be considered as a prior art (any published patent or non-patent literature similar to your invention that is used to initially reject your invention from a potential patent protection). However, a provisional patent application will not be examined for patent protection, unless a non-provisional version is submitted within twelve (12) months of the provisional patent application’s filing or priority date.

So why go provisional? Well, let’s say you’re baking bread but aren’t sure about the recipe yet. A provisional filing lets you secure your spot in line while tweaking ingredients, adjusting oven temperatures, or making improvements to the recipe – perfecting your creation before serving it up.

Benefits of Filing a Provisional Patent

Filing a provisional patent application comes with several benefits. First off, a provisional patent application allows inventors to secure a filing or priority date without a full-scale patent submission. This can be particularly handy when you are still refining your invention, seeking investors, working on prototypes, finding manufacturers, testing your invention’s market viability, building a platform to market and sell your invention, etc.

The USPTO employs a ‘first-to-file’ system. This implies that an applicant or inventor who submits their patent application first is granted priority rights over other applicants or inventors who invent similar things. It essentially means that if two inventors come up with similar inventions, the person or entity who files their patent application first gets priority rights over others.

Beyond this, having a provisional patent also allows inventors to use the “PATENT PENDING” tag. This phrase can add credibility as it attracts potential investors, sharks (shark tank reference), or partners because it shows serious intent toward protecting your invention’s intellectual property rights.

Remember though: the patent pending benefits from a provisional patent are temporary safeguards that last for only one (1) year from the filing date of the provisional patent application. You must submit a non-provisional patent application with the USPTO or risk the abandonment of your potential patent rights.

This limited time frame means inventors need to move quickly in refining their invention, assessing its market potential, and seeking partners or funding if needed.

Limitations and Risks of Provisional Patents

The attraction of a provisional patent may be strong, but it is not without some minor drawbacks. A nonprovisional application must be filed before patent rights can be enforced, which is like being in line for an exclusive event but not yet able to enter. Imagine it like having a ticket to an exclusive event, but being told you can’t enter the venue yet. You’re in line, sure – but there’s still work left before you can enjoy the party inside.

This could leave your invention vulnerable for up to 12 months. If someone else decides to copy or market something similar during this period, there isn’t much legal recourse available to stop them at the time other than warning them about potential infringement actions when the invention is patented.

If you decide not to pursue patent protection after the provisional application’s one (1) year pendency period, your invention is at risk of becoming public knowledge. For instance, if your invention is published or advertised during the one (1) year period of the provisional patent, the invention is likely to be considered part of the public domain if you do not take any subsequent action such as pursuing a non-provisional patent application. It’s akin to accidentally spilling the beans on an important secret, once out in the open – anyone has access.

An earlier provisional patent filing is limited to the United States only. You cannot file a provisional application in foreign countries to claim benefit from its earlier filing or priority date.  A provisional application cannot take benefit from another earlier provisional.  This means that you can only claim the benefit of an earlier provisional to another provisional
patent application. Provisional patents are also restricted to utility patents. They are not available for design patents. This means that you cannot file a provisional application for a design patent. You must directly file a nonprovisional patent for a design-focused invention.

Application Process of Filing a Provisional Patent

A provisional application filing involves some critical steps –

Compose a thorough and concise disclosure of your invention – You should be explicit and plain; there’s no room for obscurity. Be detailed and clear; this isn’t the time for ambiguity.

The next step is creating drawings if they’re needed to understand your invention. While drawings are not required for provisional patent applications, drawings help provide visual context and can fully disclose the invention.

Then comes filling out the provisional patent application form available on the USPTO’s Patent Center Web Site. It might seem tedious, but accuracy here is crucial. As part of your filing requirements for a provisional patent application, you must also complete and submit a cover sheet or an application data sheet (ADS) with the provisional patent application. A cover sheet or an ADS provides bibliographic data of the patent application and some basic information about the Applicant.

Lastly, there’s the mandatory filing fee – remember that inventing does not come cheap. For the provisional patent application, the exact cost primarily depends on the entity size of the Applicant (most solo inventors are considered either micro or small entities). You can check out the USPTO’s fee schedule here.

This process may appear daunting at first glance, but keep in mind it’s just a steppingstone towards securing protection for your ingenious invention. You can find other filing details of a provisional on the USPTO’s Web Site.

Transitioning from Provisional to Non Provisional Patent

Moving from a provisional to a non-provisional patent filing is like upgrading your temporary driver’s permit to an actual license. You’ve had a go, now it’s time to make the transition to the genuine article. You have one year after filing your provisional patent with the USPTO to make this leap.

But, why should you rush? Well, because if you don’t submit within this one-year grace period, anyone can swoop in and claim your invention. This next step involves submitting a more comprehensive and detailed disclosure of your invention than before.

Think of it as giving an elaborate description of your freshly constructed abode—you have to describe every corner and angle with exactness. Besides providing comprehensive details about your invention, be prepared for questions from the USPTO. It’s like defending your thesis—make sure you’re ready. Also, remember that adjustments may be needed based on their feedback or new developments in related fields.

Common Misconceptions about Provisional Patents

A common misconception is that provisional patents offer full patent protection. But this isn’t true. In reality, they only secure an early filing or priority date. Provisional patents do not mature into a granted patent unless you file a non-provisional patent application within one (1) year from the date of the provisional application’s priority date, and if the examined
non-provisional patent application is examined and granted by the USPTO.

Another widespread fallacy is the belief that provisional patents can be extended beyond one (1) year. You cannot extend the term of a provisional patent application. The clock starts ticking from the day of filing and inventors have just 365 days to transition to a non-provisional patent or lose their priority date.

FAQs in Relation to What is a Provisional Patent?

What is the point of a provisional patent?

A provisional patent lets inventors lock in an early filing date, safeguarding their invention while they fine-tune it and gauge market interest.

Is a provisional patent a good idea?

Yes, if you need time to refine your invention or secure funding. It buys you one year before needing to file for a non-provisional patent.

What’s the difference between a non-provisional patent application and a provisional patent application?

A regular (non-provisional) patent application, if granted, affords exclusive legal protection for an invention primarily to exclude others. A provisional provides the Applicant with an earlier filing or priority date to allow the Applicant to have priority in the patent rights over any subsequent patent applicants of similar invention.

What happens after you file a provisional patent?

You can freely advertise, market, promote, or otherwise exploit your invention with a patent-pending tag. However, you have one (1) year during the pendency period of your provisional application to submit your non-provisional application with detailed information about your invention; otherwise, your early filing date expires.


Understanding what a provisional patent is might seem like uncharted territory. Not so daunting after all. A provisional patent can be your invention’s temporary shield, giving you the time to perfect and test market potential. Understanding the advantages and extent of provisional patent protection helps make informed decisions for safeguarding your brilliant ideas!

Want to file a provisional patent application for your invention?

Book a consultation with the Patent Attorney at Nadkarni Law PLLC


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