The first thing one needs to know is that there is no thing as a “provisional patent,” but provisional patentrather the correct terminology is a “provisional patent application.”

Why is this differentiation important? Because a patent, by itself, implies rights, and most people erroneously believe by submitting a provisional patent application they will automatically have the patent rights of their invention. It is called an application because such a filing does not grant you any patent rights, at least not at this stage of the process.

 

 

Indeed, a provisional patent application filing has some advantages. The benefits are:

1. It grants you a filing/ priority date that can be used to prevent the statutory bar “clock” from ticking.

2. It also also grants you permission to claim “patent pending.”

3. It reserves (and documents) the date of the filing of your invention, and when the provisional patent application is drafted correctly, it will prevent any later related filings by others from being used against your invention.

 

However, a provisional application, by itself, will:

1. not grant you the exclusive right to sell products/services related to the invention.

2. not grant you the right to send a cease and desist to another (although you may place them on notice about your “patent pending.”

3. not grant you the right to claim damages if someone else practices your invention without your permission.

 

To be granted the above rights you will need to have a patent granted which requires the filing of a non-provisional patent application, before the examination process begins.

 

You can learn more about the differences between a provisional and a non-provisional patent application filing here. As a reminder, the firm does not offer free consultations. Before contacting us you are strongly encouraged to refer to our FAQ section to determine if your query has already been answered.

 

 

 

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