Since the American Invents Act, the U.S. has switched from a “first-to-invent” (FTI) to a “first-to-file” (FTF) patent system. This means that the right to patent an invention goes to the first person to file the application as opposed to the first person to create the product. In simple terms: an inventor must file before sharing the idea with potential manufacturers or the public. This is why provisional patents are important.
This can pose a problem for new inventors, however. As soon as you file your patent application, the clock starts ticking on how long your invention will be protected. In 1995, that clock was set to 20 years from the first filing date. So if you have an idea you want to patent and file before doing anything else, as you should in an FTF system, then the time you have to produce, market, and sell begins to count down from the day you file your first patent application. That is, unless you file a provisional patent application instead.
What Are Provisional Patents?
A provisional patent application is a way for inventors to establish an early effective filing date without locking in the time frame for which their invention will be protected by the patent. It allows inventors to label their inventions as “patent pending” for up to 12 months from the filing date of the provisional patent application.
Unlike the complicated non-provisional patent application, a provisional patent application is short and to the point. Typically only five to 10 pages long, it does not require a formal patent claim, an information disclosure statement or an oath or declaration. These applications consist only of drawings and a description of how your invention will be made and used.
How Provisional Patents Protect You
Once you have filed your provisional patent application, you have established your effective filing date. This way, if another inventor beats you to market, you can prove that your invention, in fact, came first.
Provisional patent applications allow you to protect your idea as soon as you conceptualize it, while buying the time to continue fine-tuning it for the market. As you continue to improve upon your original design, you can file additional provisional patent applications to protect these new developments. There is no limit to the number of provisional patent applications you can file. As long as you file a regular patent application within 12 months of the first provisional patent application, you retain your early effective filing date.
You must file a nonprovisional patent application during the 12 month provisional period to benefit from the early filing date set by the provisional patent. If you miss this deadline but are within 14 months of your original filing date, you can still salvage your early effective filing date by submitting a grantable petition. Alternatively, you could file a grantable petition within the 12 month period to convert your provisional patent to a nonprovisional application instead of submitting a separate nonprovisional patent application.
How to Get a Provisional Patent
Filing a provisional patent application is easier and cheaper than a regular patent application, but it does not automatically result in a patent. It is an important first step toward protecting your idea, but it is only the beginning. If you have an idea for a product you want to market and need assistance finding an attorney who can help you navigate the patent system, please contact us today.
Note: This page is intended to provide legal information. It is not legal advice and should not be taken as such. If you have specific questions about a legal matter, please contact your attorney.