File a Provisional Patent Application - Protect Your Ideas
A provisional patent can help you secure your design or invention from theft. Speak to a lawyer and protect your intellectual property today.
Provisional Patent Application: Protect Your Ideas
What Is a Provisional Application for a Patent?
A provisional application for a patent protects your idea and offers proof you were the first person to conceptualize your invention, process, art, or design.
A provisional patent application costs less than a patent. It also takes less time to file for a provisional patent. Ultimately, if your invention proves patentable, you’ll want to file a full utility patent application to patent your invention.
You must file your utility patent within one year of submitting your provisional patent application, or you could lose the right to file for the utility patent.
How Is a Provisional Patent Application Different from Other Patents?
A provisional patent application has a streamlined application process compared to a regular utility patent application.
Before applying for a provisional patent, you don't need to:
- Conduct a patentability search
- Show that no "prior art" exists that is similar to your invention
- Show that your invention has usefulness
- Provide an information disclosure statement showing prior art that may be similar or relevant
- Provide patent claims, or define the scope of patent protection
A provisional patent only requires a detailed description of the invention and relevant drawings submitted to the USPTO. A provisional patent also costs less than a utility patent.
A provisional patent application typically takes 10 to 12 weeks to process. A utility patent application, or a non-provisional patent application, can take five to six weeks if the USPTO doesn’t find any issues with the patent application.
If the USPTO discovers that your non-provisional patent fails to show that your invention is original and useful, you may have to revise your drawings and documentation and re-apply. By comparison, a provisional patent application passes the first time.
But, keep in mind, a provisional patent doesn’t patent your invention. Once you receive your provisional patent, the USPTO considers your invention “patent pending.”
What Does Patent Pending Mean?
Once you've filed a provisional patent application, you can list your invention as "patent pending." You can share your idea, begin marketing your invention, and tell others about it with the peace-of-mind that you can show you invented it before anyone else.
Consider "patent pending" as a warning to other inventors that you've already come up with the idea and filed a provisional application for a patent. It also secures your "first-to-file" status.
Understanding First-to-File Status and Why It Is Important
First-to-file status means if someone else files a utility patent on April 20, 2020, but you filed a non-provisional patent application on March 3, 2020, you have a greater chance of receiving the utility patent for the device, process or invention.
If someone else performed a patentability search, they’d find your provisional patent application on record. Your invention would be considered “prior art,” and the other party would need to show that their invention differs significantly from yours or represents a significant advance in technology.
The United States changed its patent laws in 2011 to become a first-to-file country. Prior to 2011, a patent would be awarded to the first person who could prove they invented the device, development, process, or design. Today, the patent goes to the first person to file. A provisional patent secures your right to file a full, non-provisional utility patent.
Three Ways a Provisional Patent Application Can Help Inventors
Once you have a provisional patent application on file, you can:
- Seek investment funding for your invention
- Begin a patentability search as part of the non-provisional patent application process
- Market your invention
- Tell other people about your invention with the knowledge that it is "patent pending"
Can a Provisional Patent Keep Someone from Stealing Your Idea?
Technically, no one can prevent anyone from stealing an idea or an invention. Provisional patent applications, patent laws, and patent attorneys provide a means of recourse if someone tries to steal your intellectual property.
If someone tries to steal your invention after you filed a non-provisional patent application, and you subsequently receive a patent for that invention, you can sue the person for patent infringement.
If you win the case, the person infringing on your patent would have to pay damages, which could include income you lost because they replicated and used or sold your invention.
Once you receive the patent, you could receive up to triple damages if you prove someone intentionally stole your invention and it hurt your income or business.
What to Do If Someone Ignores Your "Patent Pending" Notification
- Send a cease and desist letter, warning them that your invention is patent pending
- Wait until your patent is approved and sue them for patent infringement
- Wait until you've received your patent and grant them licensing rights to continue manufacturing and selling your invention
In many cases, a cease and desist letter does the trick to get the offending party to stop using or selling your invention. They may not have known you had a patent pending on the invention. They probably don’t want legal trouble.
You may wish to call on the assistance of a patent attorney to draft the letter, as a document from an attorney looks more credible.
In most cases, having “patent pending” marked on your products will prevent people from willfully stealing your idea. But you must file a provisional patent application before declaring your invention “patent pending.”
If you falsely mark an invention as “patent pending,” you could face fines of up to $500 per infraction. So, if you have 10 of the same invention on a store shelf, you could be penalized $5,000 if they were falsely advertised as patent pending.
How Do I File a Provisional Patent Application?
- A provisional patent application requires fewer pieces of information and also costs less to apply.
- A provisional patent application must include:
- A cover letter with the required information, as outlined by the USPTO
- The filing fee
- The names of all inventors
- A written description of the invention
Your provisional patent application should also include any relevant drawings necessary to understand the patent. You can’t introduce new material to the patent once you’ve filed the provisional patent application. So it’s important to make sure you’ve covered everything you need to demonstrate the originality and usefulness of your invention.
Once you’ve collected the informational and obtained the provisional patent application form, you can file by mail or securely online through EFS-Web.
To file electronically via EFS-Web:
- Prepare documents in .PDF format
- Attach the PDF files
- Validate the PDFs are compatible with USPTO internal automated information systems
- Submit the documents
- Pay the filing fee through real-time payment processing
You may also use fillable EFS-Web forms to ensure compatibility with USPTO systems. Your patent attorney can help you with this process.
Does a Provisional Patent Application Save Money?
A provisional patent application costs money. When the time comes, you’ll still need to pay for a non-provisional patent application. So it doesn’t save money. But it can save you time and hassle by securing your right to file a patent.
If someone else comes in and tries to patent your invention while you’re still conducting a patentability search, your invention’s “patent pending” status gives you first-to-file rights.
In the long run, a provisional patent application can save you from wasting money.
Should I File a Provisional Patent Application?
- Secure funding or find investors
- Find supply chain partners
- Set up manufacturing systems
- Gauge the market response to your invention
- Conduct a patentability search for your invention
Simply: File a provisional application for a patent before you discuss or share your idea with anyone else, which lawyers call “public disclosure.”
You must file your provisional patent application within 12 months of public disclosure. If you wait too long to file, you could be denied your non-provisional patent when you apply.
File for a provisional patent application to:
- Protect your idea
- Discourage others from copying it
- Secure your standing as the "first-to-file" a patent on your invention
Let The Patent Professor® help you with this essential first-step toward patenting your intellectual property.
Let The Patent Professor® help you secure your innovation with this essential first step to filing a patent. Call (877) 318-2152.
