provisional patentHow much does a provisional patent cost?

First off, there is no such thing as a provisional patent. It is an application, not a patent. Cost for provisional patent applications can vary from $2,500 to $5,500 depending on the technology and complexity of the invention.

It is important to understand what  a provisional patent application really is.

Provisional patent applications do not have any formal requirements, however they, statutorily, must comply with 35 U.S.C §112(a). See 35 U.S.C. §111(b). A provisional patent application must have “a written description … [that describes] the manner and process of making and using [the invention], in such full, clear, concise, and exact terms as to enable any person skilled in the art … to make and use the same … .” 35 U.S.C §112(a). 

In other words, a provisional patent application must describe the invention with enough detail that a person with average understanding in the field of the invention, must be able to replicate it after reading the provisional filing disclosure. If shortcuts are employed, and the above requirement is not satisfied, the provisional filing would most probably become worthless. In fact, in such a situation one would probably be better off by not filing a provisional application at all — as is evident by the following cases:

In New Railhead Mfg., L.L.C. v. Vermeer Mfg. Co., 298 F.3d 1290, 1294 (Fed.Cir.2002) the court invalidated a patent since the initial provisional application filing did not adequately disclose the claimed invention. Further, in MPHJ Tech v. Ricoh (Fed. Cir. 2017) [16-1243-opinion-2-9-2017-11] , the court held that changes made to the provisional application (while filing the non-provisional (utility) application) contributed in understanding the intended scope of the invention and affirmed the invalidation of the patent due to the poor disclosure in the provisional application filing.

Therefore, to fully take advantage of a provisional application filing, and to further avoid the issues like those stated in New Railhead Mfg and MPHJ Tech, the inventor should be prepared to disclose the invention in as much detail as possible to a patent attorney. As far as costs go, the time needed for your attorney to fully understand and write the application will be dependent on the complexity of the subject matter. If your invention is simple, costs for the provisional patent application would be on the lower end of the fee spectrum described above. If it’s complex, you should expect your legal fee at the higher end of the fee range.

You are also encouraged to read our posting regarding how to select a patent attorney.

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