There is no such thing as a provisional patent. One can never receive a provisional patent because it simply does not exist. In order to protect your invention you may choose to file a provisional patent application. However, it is only an application that is not examined or even looked at by any employee of the patent office until you file a corresponding non-provisional patent application.
The Reality of Provisional Patents: Why They Don’t Exist
You may have heard of provisional patents, or provisional patent applications, as a way to protect your invention for a year before filing a regular patent application. However, a provisional patent application is not a patent at all, and it does not guarantee that you will get a patent in the future.
A provisional patent application (PPA) is a document that you can file with the U.S. Patent and Trademark Office (USPTO) to establish an early filing date for your invention. A PPA does not require a formal patent claim, oath or declaration, or any information disclosure (prior art) statement. It also allows you to use the term “Patent Pending” for your invention. It is important to note there is no such thing as a “provisional patent,” as further explained.
A PPA is useful because it gives you time to develop your invention, test the market, and prepare a nonprovisional patent application (NPA), which is the second and final step in the patent process. PPAs are optional and one may choose to proceed with an NPA directly. However, presuming a PPA is filed, its validity lasts for 12 months from the date it is filed. During this period, you must file a corresponding NPA that claims the benefit of the PPA, otherwise the PPA will expire and you will lose the filing date. A PPA is not a patent and does not grant you any patent rights. The sole purpose of filing a PPA is to reserve your invention date for a limited period of 12 months.
What are some common misconceptions about provisional patent applications?
- One common misconception about PPAs is that they are a cheap and easy way to get a patent. While it is true that PPAs have a low filing fee and do not require a formal preparation or documents, they are not a substitute for a NPA. A PPA only establishes a filing date for your invention, but it does not grant any patent rights or protection. To get a patent, you still need to file a NPA within 12 months of the PPA filing date, and pay the additional fees and costs associated with the NPA process.
- Another common misconception about PPAs is that they protect your invention from being copied by others. While it is true that PPAs allow you to use the term “Patent Pending” for your invention, this does not mean that your invention is safe from infringement or competition. The term “Patent Pending” only indicates that you have filed a patent application with the USPTO, but it does not imply that your invention is novel, useful, or non-obvious. Anyone can still copy, use, sell, or import your invention without your permission, unless and until you obtain a patent. Moreover, if someone else files a NPA for a similar invention before you file your NPA, they may get priority over you and prevent you from getting a patent.
Conclusion
There is no such thing as a provisional patent. A provisional patent application is not a patent, and it does not grant any patent rights or protection. It is only a document that establishes an early filing date for your invention, but it does not guarantee that you will get a patent in the future. A provisional patent application has many limitations and misconceptions, and it should not be used as a substitute for a nonprovisional patent application.