• August 2019
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What is a Provisional Patent?

lawtrades what is a patent

Inventing something new is rarely an easy or straightforward process. Even when “lightbulb” moments occur and a viable, novel idea is sparked in the span of an instant, hard work is generally required in order to bring a completed product, process, machine or design into existence. Once an invention is fully realized, securing proper legal protections for that invention becomes urgent business. Too often, individual inventors and innovative businesses fail to take this last, critical step of the invention process. If you have recently created a new and novel product, process, machine, plant species or design, please know that it is time to seek formal patent protections for your work with the assistance of an experienced intellectual property attorney. The longer you wait to take this step, the longer both you and your invention will remain legally vulnerable in a host of fundamental ways.

The patent application process is notoriously complex and time-intensive. As a result, intellectual property attorneys experienced in navigating this process successfully tend to utilize a number of tricks and tools designed to obtain patent protections swiftly without compromising the integrity and success of any given patent petition. One of the most helpful legal tools attorneys use when attempting to protect new inventions as quickly and completely as possible is the provisional patent application process.


Patent Application Basics – Timing Is Everything

There is no such thing as a provisional patent, per se. The only way to secure legally enforceable patent protections is to submit a non-provisional patent application to the United States Patent and Trademark Office and to have that application approved. The provisional patent application process does not result in an applicant securing a legally enforceable patent. This process results in the applicant receiving a favorable filing date for a corresponding non-provisional patent. While securing a favorable filing date does not sound like a consequential turn of events, the provisional patent application process is a significant legal tool for many concrete reasons.

When an applicant begins working with an attorney to complete a non-provisional patent application, it is likely that weeks or even months may pass before it is ready for submission to the USPTO. Once submitted, the non-provisional patent application will be stamped with a filing date. This filing date is critical because it may potentially affect the application’s success or rejection and may potentially affect the outcome of any intellectual property suits filed in regards to the invention in question at any point in the future.

Why is this date so consequential? The filing date of non-provisional patent applications is the date against which reviewers employed by the USPTO will judge the novelty of the invention. This is critical because the USPTO will not grant patent protections to any inventions that are considered too fundamentally similar to other protected works. Over the last 100 years, inventions have been created and innovations have been made in virtually every major industry with startling speed and frequency. Failure to protect your work as early as possible means that your work may lose out on the ability to be considered novel if claims of so-called “prior art” emerge before your application’s filing date is formalized. Similarly, if your patent is approved and you either need to enforce your intellectual property rights against infringement or you need to defend your rights against those who would claim that your invention is rightfully their work, your non-provisional patent application filing date will be the date against which the courts consider your intellectual property rights to be legally enforceable. Thus, securing a favorable filing date is an act that may affect your work and your life for years to come.


How the Provisional Patent Application Process Works

When an invention is either complete or nearly complete, an intellectual property lawyer can help the invention’s creator to file a provisional patent application. This application requires significantly less detail and support than a non-provisional patent application does. Once the provisional patent application is filed, the USPTO will stamp it with a filing date. As long as the inventor submits a non-provisional patent application for the same invention within one year of the provisional patent filing date, the novelty of the invention in question will be judged against the earlier provisional patent filing date, not the non-provisional patent filing date.

It is in this way that provisional patent applications give inventors and their attorneys time to craft complete and well-supported non-provisional patent applications without fear that the longer they take, the more they will risk the emergence of potentially damaging prior art. By filing a provisional patent application, an inventor may potentially gain a full year of time to perfect an invention, complete a non-provisional application and work with an attorney to conduct a patent clearance search in order to better ensure the integrity of the intellectual property rights attached to the invention in question.

It is important to take note of a few limitations attached to the provisional patent application process before committing to taking this step. First, know that there is no way to extend the one-year deadline for filing a non-provisional patent application after filing a provisional patent application. If you do not file a corresponding non-provisional patent application during this time, the novelty of your invention will be judged against the non-provisional filing date, not the earlier provisional filing date. Second, you may not submit a provisional patent application if you hope to secure a design patent. The USPTO only accepts provisional patent applications from utility patent applicants and plant patent applicants. Finally, know that if you dramatically alter your invention after submitting a provisional patent application, you may not be able to benefit from the earlier filing date. It is important to speak with your attorney if you feel you may be at risk of being affected by this final process-related limitation.


Intellectual Property Guidance Is Available

If you are interested in securing patent protections for your new and novel invention, please consider connecting with an intellectual property attorney as soon as your vision has been realized and your invention is either complete or will be completed soon. Securing a favorable filing date through the submission of a provisional patent application may be an ideal way for you and your attorney to protect you and your invention from legal vulnerability as you work to complete your non-provisional patent application. Please consider reaching out to schedule a consultation with one of our intellectual property attorneys as soon as you are ready to explore your intellectual property protection options.