Filing a provisional patent application is a strategic step many inventors take in the patenting process. While this opportunity is not available to those who are filing for design patent protection, it is available for aspiring utility and plant patent holders.
The primary benefit of a provisional patent application is that it establishes an early filing date. In the patent world, the date of filing is crucial, as the U.S. Patent and Trademark Office (USPTO) operates on a “first to file” system. This means that if two inventors file patents for similar inventions, the USPTO will give preference to the one with the earliest filing date.
How does a provisional patent application work?
Filing a provisional patent application allows an inventor to secure an early filing date for their non-provisional (final) patent application while buying time to draft that final application. As long as the provisional patent application is filed no more than 365 days before an inventor’s non-provisional patent application, the latter will be stamped with the filing date for the former. This means that any claims of prior art will be judged against the earlier filing date — not the date upon which the non-provisional patent application is submitted.
A provisional application gives an inventor an additional year to refine their invention, conduct market research or seek funding. During this period, the inventor can use the term “Patent Pending” on their product or marketing materials, which can be valuable for business and deter potential infringers.
Additionally, a provisional application affords an inventor time to assess the commercial viability of their invention. This period can be used to gauge market interest, seek potential licensees or find investors. If the invention does not seem commercially viable, the inventor can choose not to proceed with a non-provisional application, thereby saving time and resources.
For inventors who are eager to safeguard their work as efficiently and effectively as possible, taking advantage of a provisional patent application opportunity can be a good idea. Those who have questions about this process can seek legal guidance at any time.
