• February 2020
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How to Write a Provisional Patent Application That Won’t Get Rejected

lawtrades patent application how long form

If you or your business has invented a new product, machine, plant species or created a unique design for a product or machine, it’s time to protect your innovation. Too often, creative individuals and businesses fail to protect their hard-earned intellectual property. When intellectual property remains vulnerable, it can be infringed upon. Similarly, as long as their inventions lack safeguards, businesses and individuals risk being slapped with an infringement lawsuit from others claiming ownership over that intellectual property. Protecting an invention requires applying for a patent from the U.S. Patent and Trademark Office. 

Most of the time, navigating the patent application process involves submitting two separate application forms to the USPTO. First, an inventor submits a provisional patent application to secure the most favorable filing date possible for their non-provisional patent application. Second, the inventor submits a formal, final, non-provisional patent application within a year of their provisional patent application. Securing an approved provisional patent application is often critical to the successful approval of an inventor’s non-provisional patent application. As a result, it is important to take the process of writing a provisional patent application seriously. If you submit a provisional patent application to the USPTO and it is rejected, you may foreclose the only opportunity you have to patent your work. Ultimately, it is advisable to keep the following provisional patent application tips in mind as you begin work on your submission.


Step One: Know Which Type of Patent You’re Applying For

The USPTO accepts non-provisional patent applications for all patent-eligible inventions. However, this agency only accepts provisional patent applications for plant patents and utility patents. If you’re applying for a design patent, you can’t submit a provisional patent application. Instead, you’ll need to get to work right away to submit your non-provisional patent application as soon as you possibly can. How do you know which patent category your invention belongs in? 

Plant patents extend to new species and hybrids of asexually reproducing plants. Utility patents (which account for 9 out of every 10 patents issued by the USPTO) safeguard manufactured products, processes, and machines. To be eligible for a utility patent, an invention must be both novel and useful. Finally, design patents are issued for fundamental design elements of manufactured products, processes, and machines. Easily removeable ornamentation isn’t eligible for design patent. 


Step Two: Understand the Purpose of a Provisional Patent Application

It’s important to remember the purpose of a provisional patent application when completing it. Otherwise, you may be tempted to provide far more information than the application requires. Unlike a non-provisional patent application, a provisional patent application can’t ever lead to securing a patent. The sole purpose of filing a provisional patent application is to secure a favorable filing date for your non-provisional patent application. The filing date associated with a non-provisional patent application is the date against which the USPTO judges the novelty of the invention in question. Also, this is the date that intellectual property protection of an invention (that is eventually granted a patent) begins. 

Completing a non-provisional patent application is a notoriously labor-intensive and time-intensive process. Filing a provisional patent application within one year of filing a non-provisional patent application allows those benefits to be assumed earlier than they would be if only a non-provisional patent application is filed. As a provisional patent application only serves as a placeholder so that an inventor can benefit from a favorable non-provisional patent application filing date, it is a short application. It is likely that your provisional patent application will be less than 10 pages total. You therefore don’t need to overthink its contents.


Step Three: Clearly Explain What Your Invention Is and How It Works

A successful provisional patent application should clearly explain what your invention is and how it works. Your non-provisional patent application won’t benefit from your provisional patent application filing date if the inventions you describe in each are too dissimilar. As a result, you need to be able to accurately describe your invention in both words and drawings. When describing your innovation, identify each of its fundamental features, how they interact with each other, and your invention’s purpose. Keep in mind that if you’re applying for a utility patent, you’ll need to explore why this invention is useful. Does your invention solve a problem? Is an experience enhanced? Does it make a task easier to complete? If an invention isn’t useful, the USPTO won’t approve it for a utility patent.

The challenge of describing your invention will inspire an important question you’ll have to consider. Should you conduct a patent search now or before your non-provisional patent application is filed? A patent search will allow you to determine whether any existing inventions fundamentally mirror any of your invention’s features. That way, if your invention too closely resembles protected intellectual property, you can tweak your innovation until it becomes eligible for a patent.


Conducting a Patent Search

Only unique inventions are issued patents. Many inventors choose to wait to conduct a patent search until they’re working with an attorney on their non-provisional patent applications. Patent searches take a great deal of time and they are highly technical, so many inventors allow their attorneys to complete these searches on their behalf. However, other inventors choose to conduct patent searches before their provisional patent applications are submitted. These inventors prefer to know whether their inventions are truly novel before submitting paperwork to the USPTO. Completing a patent search now can give you this peace of mind. However, it will also delay your filing date. Only you can weigh the cost-benefit analysis of this situation. Once you have made your decision, you can complete your paperwork, pay your fee, double-check your cover sheet and submit it to the USPTO.


Intellectual Property Guidance Is Available

If your new invention is eligible for patent protection, you likely have questions about how to successfully secure your patent. Please consider reaching out to the experienced intellectual property lawyers at LawTrades with your questions today. Our lawyers can answer any questions you have regarding either patent application type and/or enforcing your intellectual property rights. If you’d like assistance securing your patent or enforcing an existing patent, we can help. Our informed, efficient approach appeals to individual inventors and innovative businesses alike. We look forward to taking your call.