Provisional Patent Application

Provisional Applications: A provisional application is a temporary patent application that may be filed without a formal patent claim, oath or declaration, or any information disclosure statement. The provisional application is not examined by the U.S. Patent Office.

The advantage of the provisional application is that it locks in a priority date for the disclosed invention. This may become important when overcoming prior art references that are published or filed in between the earlier filing date of the provisional and filing date of a later filed non-provisional application.

Additionally, the filing of a provisional application stops the running of any statutory time bars that would prevent a patent from being granted. In the U.S., one can be barred from receiving a patent if certain events have occurred more than 12 months prior to the filing of a patent application. For example, if one sells a product more than 12 months prior to filing a patent application for the same product, one loses the right to obtain a patent on the product. If, however, a provisional application was filed less than 12 months after the product was sold then there is no bar for the subject matter disclosed in the provisional application and Trademark Office.

The filing of a provisional patent application allows the term "Patent Pendings" to be applied, which can have significant marketing advantages.

A provisional patent application lasts 12 months from filing. The 12-month pendency period cannot be extended. Therefore, an applicant who files a provisional application must file a corresponding non-provisional patent application for examination in the U.S. Patent and Trademark Office during the 12-month pendency period of the provisional application in order to benefit from the earlier filing date.

The life of the patent is not affected by a claim for priority from a provisional patent application. That is, the 20 year period of exclusivity begins when the later filed non-provisional is filed. Provisional patent applications are less expensive to file in the U.S. Patent and Trademark Office than regular non-provisional patent applications, because the filing fees are less. In addition, provisional patent applications may also be less expensive to prepare than non-provisional patent applications due to the fact that they need not be filed with a complete set of claims. Thus, if properly prepared in accordance with the disclosure requirements of the U.S. patent laws, a provisional patent application may save clients time and money.

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