U.S. provisional application
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A provisional application is a
patent application A patent application is a request pending at a patent office for the grant of a patent for an invention described in the patent specification and a set of one or more claim (patent), claims stated in a formal document, including necessary officia ...
filed at the
intellectual property Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, co ...
offices of some countries. It does not mature into an issued patent and is deemed abandoned one year after its filing. It is used to secure a
filing date This is a list of legal terms relating to patents and patent law. A patent is not a right to practice or use the invention claimed therein, but a territorial right to exclude others from commercially exploiting the invention, granted to an inven ...
for a subsequent non-provisional patent application claiming priority of the provisional application. There is no such thing as a "provisional
patent A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an sufficiency of disclosure, enabling discl ...
".David Pressman, ''Patent It Yourself'', Nolo Press, 2006, page 56, . The same term is used in past and current patent laws of different countries with different meanings.


History

The provisional application was introduced to U.S. patent law with a 1994 amendment of the
Patent Act of 1952 The Patent Act of 1952 clarified and simplified existing U.S. patent law. It also effected substantive changes, including the codification of the requirement for non-obviousness and the judicial doctrine of contributory infringement. As amended, ...
. A 12-month benefit of priority to foreign-filed applications had been a part of U.S. patent law since the 1901 U.S. ratification of the Brussels revision of the
Paris Convention for the Protection of Industrial Property The Paris Convention for the Protection of Industrial Property, signed in Paris, France, on 20 March 1883, is one of the first intellectual property treaties. It established a Union for the protection of industrial property. The convention is s ...
.


Characteristics

Under U.S. law, a provisional application, as such, is never examined by the
United States Patent and Trademark Office The United States Patent and Trademark Office (USPTO) is an List of federal agencies in the United States, agency in the United States Department of Commerce, U.S. Department of Commerce that serves as the national patent office and trademark ...
(USPTO), and therefore never becomes a patent on its own (unless the provisional patent application is later converted into a non-provisional patent application by the applicant, and then the application is examined as a non-provisional application). The provisional application is also not "published", but becomes a part of any later non-provisional application file that references it, and thus becomes "public" upon issuance of a patent claiming its priority benefit.Provisional Application for Patent
published by the United States Patent & Trademark Office.
A "provisional" is automatically abandoned (expires) one year after it is filed. The provisional filing date is not counted as part of the 20-year life of any patent that may issue with a claim to the provisional filing date. The USPTO announced on December 8, 2010, that it was implementing a Missing Parts Pilot Program. This pilot program provided applicants with a 12-month extension to the existing 12-month provisional application period to file Missing Parts in a Non-provisional application. This pilot program did not change the requirement for an applicant to file a non-provisional application within 12 months; though it allowed additional time to reply to a missing parts notice.USPTO Implements Pilot Program
/ref> The USPTO decided not to extend the Extended Missing Parts Pilot Program beyond January 2, 2019. A provisional application includes a specification, i.e., a description, and
drawing Drawing is a Visual arts, visual art that uses an instrument to mark paper or another two-dimensional surface, or a digital representation of such. Traditionally, the instruments used to make a drawing include pencils, crayons, and ink pens, some ...
(s) of an
invention An invention is a unique or novelty (patent), novel machine, device, Method_(patent), method, composition, idea, or process. An invention may be an improvement upon a machine, product, or process for increasing efficiency or lowering cost. It m ...
(drawings are required where necessary for the understanding of the subject matter sought to be patented), but does not require formal
patent claim In a patent or patent application, the claims define in technical terms the extent, i.e. the scope, of the protection conferred by a patent, or the protection sought in a patent application. The claims particularly point out the subject matter whi ...
s,
inventor An invention is a unique or novel device, method, composition, idea, or process. An invention may be an improvement upon a machine, product, or process for increasing efficiency or lowering cost. It may also be an entirely new concept. If an ...
s' oaths or declarations, or any information disclosure statement (IDS). Furthermore, because no examination of the
patentability Within the context of a national or multilateral body of law, an invention is patentable if it meets the relevant legal conditions to be granted a patent. By extension, patentability also refers to the substantive conditions that must be met fo ...
of the application in view of the
prior art Prior art (also known as state of the art or background art) is a concept in patent law used to determine the patentability of an invention, in particular whether an invention meets the novelty and the inventive step or non-obviousness criteria f ...
is performed, the USPTO fee for filing a provisional patent application is significantly lower ($65 - $325 as of January 19, 2025) than the fee required to file a standard non-provisional patent application.


Procedure and benefits

To obtain the benefit of the "provisional" filing date, a non-provisional patent application must be filed, claiming benefit of the filing date of one or more specific provisional patent applications, prior to their expiration. The provisional patent application is only pending for 12 months prior to becoming abandoned. Thus, filing a non-provisional patent application claiming the benefit of the provisional application must be done within 12 months. Otherwise, the rights to claim the benefit of provisional application are lost. If a non-provisional application is not expected to be filed within one year, and the patent is not otherwise barred by law, another provisional application may also be filed at any time and start another one-year period (but this does not work in all cases). Information disclosure statements (IDSs) are not permitted in provisional applications. Since no substantive examination is given in provisional applications, a disclosure of information is unnecessary. Any such statement filed in a provisional application will be returned or destroyed at the option of the Office. The advantages of a provisional patent application are: * ease of preparation, * lower cost, and * the ability to use the term "
patent pending "Patent pending" (sometimes abbreviated by "pat. pend." or "pat. pending") or "patent applied for" are legal designations or expressions that can be used in relation to a product or process once a patent application for the product or process h ...
", which can only be legally used when a patent application has been filed, and which may have significant marketing advantages. "The importance of this is that you can lock in your priority filing date with the provisional application, while at the same time you are permitted to apply the coveted term "Patent Pending" to your invention and/or products. This is important because you cannot use the term "patent pending" or "patent applied" legally in the U.S. unless you do actually have some kind of a patent application on file with the Patent Office."


See also

*
Patent caveat A patent caveat, often shortened to caveat, was a legal document filed with the United States Patent and Trademark Office, United States Patent Office. History Caveats were instituted by the US Patent Act of 1836, U.S. Patent Act of 1836, but wer ...
* Provisional rights


References


External links


Provisional Application for Patent
at the USPTO. {{DEFAULTSORT:Provisional Application United States patent law