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The Provisional Patent? – 3 Reasons Not to File

Have you just created the newest, most creative, and important new invention? Your invention may very well revolutionize the world – but that doesn’t always mean that the very first thing that you should do is to rush to the US Patent and Trademark Office (“USPTO”). Even though intellectual property and patent law has drilled into inventors the necessity of a US product patent and its protection, filing a provisional patent application may not be your best bet. For some inventors – especially solo inventors – it may not be necessary to put a product patent your invention at all.

What is the Provisional Patent Application?

A provisional application is a form of product patent application that is used before filing a full utility patent application. A utility or product patent is a patent that covers the creation of a new or improved—and useful—product, process, or machine. The provisional application acts as a placeholder with the US Patent and Trademark Office – USPTO. This placeholder establishes the filing date of your invention.

Important Details of the Provisional Patent

A provisional patent application is not checked or verified by the USPTO. Instead, it states that on a given date an inventor has demonstrated the intention of placing a product patent on said invention. This is beneficial to show that you are the first person to attempt to patent this idea if another similar patent is filed before you are ready to file your official non-provisional product patent application.

In the US this is vital because we follow the first to file philosophy. So, even if you’ve been working for years, you are out of luck if you were not the first one to file a product patent on this particular invention – and the provisional patent application helps here. The earliest of filing dates prevents your competition from beating you to the punch.

Do not confuse the provisional patent and the full utility patent. The provisional patent offers no protection unless a utility patent application is filed and granted by the USPTO. Plus, if a full patent application isn’t filed within 12 months of the initial filing, the provisional patent application will lapse and the inventor loses all claims to that filing date.

Cost

The provisional patent application and its placeholder qualities are relatively inexpensive. It is much more expensive to file for the non-provisional patent application. Fees associated with filing a provisional patent application can start at as little as $65, though there can be multiple fees in the filing process. There can be an economic benefit to this approach. You can use this additional year, and relatively low filing fee, to delay the full cost of the utility patent filing fee.

Filing for the full non-provisional product patent application is where the costs begin to add up. A full utility patent can cost thousands of dollars, depending on the size of the applicant, the nature of the invention (apparatus, biotech, electrical, design, plant) and the process hiccups that can occur along the way as the patent application is examined. Even making small changes to your application during the examination process will cost additional money.

Even though the provisional patent application and filing fee are a relatively inexpensive device to buy you an additional 12 months of protected time, the cost of filing the non-provisional patent application often results in an inventor scrapping the patenting an invention. So, would the provisional patent application filing fees be a waste of time and money?

For more information on the cost, check out this related article from our blog: Provisional Patent Cost.

Are you Patenting a Product or an Aspect of a Product?

The USPTO typically does not grant patents on a full product or the whole invention. The patent is only applied to the unique and distinct aspect of an invention. Knowing the difference between the two is vital. It can be a total waste of money to file on an entire product or invention. Sticking with the smaller and more unique part is vital. But, if you do have a unique aspect then this may be worth patenting if, for example, you’ve created a new algorithm, or a new way to close an item.

Is there truly an element of the product that is unique and critical to the value of the product itself? If not, it may be best to skip the patent process.

What about Copycats?

Being granted a patent does not mean an inventor is free of worry from legal challenges. Are you willing to enforce your patent no matter the cost? That is the limit of a patent’s protection. You, or your attorney, must fight anytime someone infringes on your invention. A perfect patent may be copied. That occurs when an inventor has a patent but cannot afford to protect it in court.

Unfortunately, the patent itself does not protect your invention. Going through the court system or mediation is typically the only method of enforcement. So, even with the patent, infringers may still copy. Inventors may need to defend their patent in court to stop the copycats. This will cost time and money on legal fees, even if your case is a slam dunk. Watch out for challenges from big companies or deep-pockets. It’s hard for any inventor to sustain this patent attack.

Should You File for “Patent Pending” Status?

After weighing factors on all sides of the provisional patent debate, you still might now know what to choose. Deciding whether it’s appropriate to file for a patent is absolutely dependent on the particular circumstances of the invention. Given this, it is a smart plan to discuss you invention and options with a seasoned patent attorney. This is especially important since this decision can impact both the future of your invention but also your personal finances.

LawTrades knows Patents

Your invention is your business, but intellectual property law and patents is ours. So, let LawTrades assist in your patent filing process. We can help you team up with the best lawyer to discuss all of your options. This attorney can help, if needed, to file a strong utility patent application.