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Provisional Patents: The First Real Step Toward IP Protection

Do you know the #1 reason inventors fail? Simple, it takes a team to bring a new product or process to market. You cannot do it alone. But, far too often inventors are afraid of sharing their idea with others for fear it will be stolen. Filing a provisional patent eliminates that concern by allowing an inventor to certify that the invention is theirs as of the date and time that the provisional patent application is put in the mail.

What is a provisional patent and why should you get one?

A provisional patent is essentially a placeholder, it is a ticket in line that lasts for one year from the filing date of the provisional patent. The provisional patent application must provide sufficient detail about the invention to identify and clearly describe the invention that is intended to be patented. Then, as long as a complete non-provisional patent application for the same invention is filed within one year, when the patent is finally awarded, the filing date of the provisional patent application will become the effective date of the patent.

When should you be going after a provisional patent?

If you have an idea for a new and potentially valuable product or process that is patentable, it is a good idea to file a provisional patent application before you begin sharing that idea with other people. Of course, you must keep in mind that once you do file a provisional patent application, you must file a non-provisional patent application within one year. So, the clock starts ticking on moving the idea forward once you do file. However, what this does is provide you with some protection against someone else learning about your idea and stealing it by filing a patent before you do. The United States is now “first to file” country, and therefore there is a real possibility that your idea could be stolen if you begin sharing it before seeking at least a provisional patent. With that said, most inventions require a team of people to make them a reality and bring them to market, so if you never share your idea for fear that someone will steal it, you are significantly lowering the chances of that invention ever becoming a success. So, a provisional patent should be looked at as the first step toward bringing your idea to life.

Does getting a provisional patent make it easier to get a non-provisional patent later?

Yes, a provisional patent can help you in two important ways when seeking a non-provisional patent. First, depending on the level of effort you put in the the provisional patent as a better starting point. Second, having the earliest possible filing date can provide a massive benefit during prosecution with the USPTO (prosecution is the process of the USPTO reviewing and ruling on the non-provisional application). It is very common that multiple patent applications are filed for the same type of invention around roughly the same period of time from completely unrelated people. This has been true throughout history. Why this happens is a completely different matter, however it is very common. Therefore, having a provisional application that secures an earlier effective date can sometimes be the difference between a patent being awarded to one person or another.

Does a provisional patent actually give you any rights and protections?

A provisional patent does not actually give you intellectual property rights to the invention. However, a provisional patent is the cheapest, easiest and fastest way to effectively timestamp the start date of your intellectual property rights as long as you file the full non-provisional patent within one year and the patent is eventually awarded.

What is included in the provisional patent application?

While the provisional application does not necessarily have the same strict and in-depth requirements of the non-provisional application, it is necessary that the provisional patent application adequately meet some standards in order to ensure that it is able to transfer the effective date to a fully granted patent. In other words, you don’t want to get the provisional application wrong and later find out that it doesn’t count. A patent attorney will ensure that your provisional application is able to serve its intended purpose by including the following elements:

  • Invention Title: The title of the invention is not intended to be the brand that will eventually be marketed, but rather a pragmatic and descriptive application title.

  • Inventors: This is who will be assigned intellectual property rights to the invention.

  • Description: A clear and complete description of the invention that should explain in detail how to make and use the invention. If this description is found to be in contrast to later claims made on the non-provisional application it could invalidate the provisional patent. This is the most important thing to get right and is the biggest reason you should use a patent attorney when drafting a provisional patent.

  • Claims: While claims are not technically a requirement of the provisional application, however there is a good chance that the provisional patent won’t be validly applied toward the granted patent without them.

  • Drawings: Drawings are also not required for the provisional application, however as a practical matter it is typically necessary to adequately fulfill the goal of describing how to build the invention, how it works and how to use it.

  • Cover Sheet: It is necessary for a provisional patent application to include a specific coversheet that is provided by the USPTO. A provisional patent application is not acceptable without it.

  • Fee Transmittal Form: It is necessary for a provisional patent application to include a specific fee transmittal form that is provided by the USPTO. A provisional patent application is not acceptable without it.

How to file a provisional patent.

The provisional application papers (written description and drawings), filing fee and cover sheet can be filed electronically using EFS-Web or filed by mail.

Provisional Patent Cost

Service Genius Patent Fee USPTO Small Entity Fee USPTO Micro Entity Fee
Provisional Patent Application (Basic) $500 $130 $65
Provisional Patent Application (Standard) $800 $130 $65
Provisional Patent Application (Premier) $1,625 $130 $65

Why it's smart to use a patent attorney when filing a provisional patent.

Patents are incredibly important and the patent application and prosecution process is wrought with peril for inventors. This is a highly specialized area of law and working with an experienced patent attorney will actually save you an incredible amount of time and deliver value that greatly exceeds the cost. Here at Genius Patent we believe that inventors like you are our future, and we understand the bootstrapping demands of getting a new idea off the ground. That is why we do everything we can to keep our fees low and provide the best services in the business. We are here for you! Let’s get started!