• August 2019
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Provisional Patent Application Process

woman on a laptop filing for a provisional patent

In order to obtain legal protection for original inventions, individuals and innovative businesses must apply for formal patent safeguards through the U.S. Patent and Trademark Office. Patent protections allow creators exclusive, enforceable rights to use, manufacture, market and otherwise benefit from their original work for a number of years. As a result, formal patent protections are often among the most valuable assets that businesses and individual inventors may possess. Partially because these legal safeguards are so valuable, obtaining intellectual property protection is a complex, nuanced, time-intensive and relatively expensive process. However, failure to complete this process can be even more costly to a business or individual, as unpatented inventions remain legally vulnerable to infringement and use of unpatented inventions leaves individuals and businesses vulnerable to legal liability.

As the formal patent process is time-intensive, many creative businesses and enterprising inventors are understandably concerned about leaving their work legally vulnerable for the length of time it takes to complete the patent application process and the length of time it takes the USPTO to approve final, non-provisional patent applications. Many of these applications are hundreds of pages long and take even the most efficient and experienced intellectual property attorneys months to complete on behalf of their clients. Thankfully, there is a stop-gap solution that allows patent applicants the ability to significantly protect their work and safeguard against their own risk of legal liability while the formal patent application process is finalized. This solution is commonly referred to as a provisional patent application.

Provisional Patent Applications – The Basics

A provisional patent application serves a single, critically important function. When a non-provisional (final) patent application is received by the USPTO, it is stamped with a filing date. This date serves as an important reference point for two fundamental elements of intellectual property protection. First, it serves as the date against which the USPTO will evaluate the novel nature and eligibility of the invention in question. Essentially, it is the date upon which all claims of prior art and other influences that may compromise the viability of an application will be judged. Second, it is the date against which any future intellectual property suits will evaluate the novelty of a protected invention. Practically speaking, this means that if you were to secure a patent but were later sued for infringement or needed to sue an infringer, this filing date “starts the clock” on when a judge will consider your invention to have secured legal protection. A provisional patent application secures a favorable filing date for an inventor’s non-provisional patent application while that final application is still being compiled.

The only function that a provisional patent application serves is to secure a favorable filing date for an invention’s corresponding non-provisional patent application. It may seem strange to go through the process of filing a provisional patent application only to secure a favorable filing date for an additional application. However, failure to take the step of filing a provisional patent application could leave your invention and your personal liability risk vulnerable for so long that your final patent application could be rejected due to prior art that emerged during the delay. Similarly, failure to secure an early filing date now could lead to legal liability down the road. In general, if you are filing a non-provisional utility or plant patent application – the provisional patent application process is not available for design patents – it is worth your time and effort to file a provisional patent application first. That way, you and your invention will gain the benefit of an early filing date while you work with an experienced attorney to file your non-provisional patent application.

Filing a Provisional Patent Application

Filing a provisional patent application is a relatively straightforward process when compared to the notoriously complex process of completing a non-provisional patent application. However, you will likely benefit from working with your intellectual property attorney to complete this step, as experienced lawyers understand all of the nuanced requirements associated with the provisional patent application process. Please note that you will need to pay a minimal fee when submitting your provisional patent application to the USPTO.

You must file your provisional patent application within one year of when you intend to file your non-provisional patent application. Failure to respect this time restriction is not advisable, as a non-provisional patent application will not benefit from the provisional filing date unless that final petition is submitted within the one-year limited time frame. You will need to include basic personal information, information about your creative work and will likely need to submit drawings of your invention as well. Once your provisional patent application is submitted to the USPTO, you will be legally permitted to use the phrase “patent pending” in regards to your invention.

If you are interested in filing a provisional patent application in anticipation of filing a non-provisional patent application, please schedule a consultation with the experienced intellectual property attorneys at LawTrades today. Our efficient, effective approach to the provisional patent application process is designed to respect your time, your resources and the urgency of your legal needs. We look forward to speaking with you.