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Provisional and Non-Provisional Patent Applications

Inventors often ask me about the difference between filing a “provisional” and a “non-provisional” patent application to protect an invention. While filing a provisional patent application is a step toward obtaining a patent, this step alone will not result in a patent being issued since a provisional application is never examined to determine if the invention is patentable. A provisional application expires a year after its filing date and a non-provisional application must be filed before the provisional application expires if a patent is going to be pursued for the invention. The non-provisional application is then examined by the U.S.P.T.O. and a patent may be issued.

One benefit of filing a provisional application may be the establishment of a filing date and “patent pending” status for an invention without having to comply with all of the formal requirements of a non-provisional application. This factor may be significant if the invention is still being developed and may change significantly or if the inventor is undecided whether to pursue a patent through the entire process. One common assumption is that because the rules for filing a provisional application are less stringent than for a non-provisional application, the cost will be less. But the larger cost of preparing a more complete application is only deferred to a later date since the follow-up non-provisional application must still be filed. And although the formal requirements for a provisional application are lower, the legal requirement to provide a complete and accurate disclosure of the invention still applies to a provisional. If a significant aspect of the invention is not described in sufficient detail in the provisional application, the ability to obtain U.S. and foreign patent protection may be compromised or lost.

Submitted by Attorney Jeff Proehl

February 09, 2015