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Provisional Applications for Patent – In a Nutshell

traverselegal - July 27, 2012 - Patent, Patent Law

A “provisional application for patent” – usually called a provisional patent application – is basically a 12-month placeholding application.   It is less expensive than a regular (non-provisional) patent application, because the filing fee is lower ($125 vs. $530), and because it does not require a set of patent claims to be appended to the technical description, so attorney time in writing the application is reduced.

Once filed, the provisional application buys you twelve months of time to focus on other things, for example prototyping or manufacturing your invention, or getting a new business off the ground.  During these twelve months, the provisional application sits quietly and confidentially in the Patent Office, without any action other than a filing receipt being issued.   The provisional application allows you to use “patent pending” notice just like a regular (non-provisional) application. Before the end of the twelve-month period, you can take advantage of the provisional application filing or “priority” date by filing a regular (non-provisional) patent application that claims the benefit of the provisional filing date.  This has several advantages, perhaps the most important being that any intervening public or commercial activity with the invention will not be counted against the regular application when it is examined.  Whether or not you file a regular application, the provisional application simply expires at the end of the 12-month period, its purpose served.

While it is possible to file your own provisional application, or to use an Internet filing service that simply files what you write for a fixed fee, this can be a costly mistake, and you could lose patent rights to which you might have been entitled.  It is usually better to have a provisional application drafted and filed by a registered patent attorney.

If you have any questions regarding the preparation, filing, or effect of provisional applications, please do not hesitate to contact us for a chat with one of our patent attorneys.

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