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Why you should file a provisional application.

A provisional application preserves your filing date and establishes the 'earliest filing date' of the later non-provisional application

Especially in the current 'first inventor to file' regime, a provisional application can help avoid someone else beating you to the patent office

For startups and entrepreneurs, a provisional application affords you the 'patent pending' status while you raise money and build your business

A provisional application costs fraction of what it costs to file a non-provisional application

You can postpone the decision to file a non-provisional application for twelve months while your filing date is preserved

It shows pride, diligence, and good business sense when you are promoting your technology, products, and your business

Filing of the provisional patent application does not start the 20 year clock, and therefore does not reduce the life of your later issued patent

Click To See An Example Provisional Application Generated



What is a provisional patent application?

A provisional patent application is a type of patent application available to the US inventors. Provisional patent applications are not required to have a formal patent claim or an oath or declaration. Moreover the submission format requirements are more relaxed than non-provisional application, which makes provisional applications cheaper, faster, and easier to prepare and file. However a provisional application is not examined by the US patent office and it expires twelve months from its filing date. Therefore, a provisional application has to be followed by a non-provisional application before the twelve month pendency expires.

The most important thing about a provisional application is that it provides the means to establish an early effective filing date in a later filed non-provisional patent application. Note that there are no provisional applications for design patents that cover only ornamental features of a product (rather than functional aspects).

What are the benefits of provisional applications?

A provisional application enables the applicant to establish an early filing date which becomes the earliest filing date of the non-provisional application filed within the twelve months following the filing of the provisional application. Once a provisional application is filed, the applicant can mark the invention or the product containing the invention as 'patent pending'.

The twelve month pendency of the provisional application is especially important for inventors who are still testing their invention for its market potential or still improving the invention. Filing of the provisional application in effect protects an invention while the inventor explores whether it would be worth the expense of filing a non-provisional application.

What does 'first inventor to file' regime mean?

It means that if more than one inventor came up with the same patentable invention independently the inventor who files a patent application on the invention first gets the patent on the invention, regardless of who came up with the invention first. This makes it extremely important for inventors and startups to file provisional or non-provisional applications as soon as possible. Otherwise one may risk a competitor getting to the patent office with the same invention earlier and patenting the invention first. A startup, especially in high tech, bio, and medical fields may jeopardize its future business if the essential patent rights to their technology is owned by another company.

The first inventor to file regime arguably gives larger entities with larger budgets advantage over small inventors since they can more easily afford filing patent applications and file them frequently. Through what we put together on FileAProvisional.com, we are leveling that playing field by making it easier, cheaper, and faster for small inventors and startups to prepare provisional patent applications.

What does a provisional application have to include?

A provisional application must include a few things for it to be properly given a filing date and also be effective in protecting the invention in later filed non-provisional patent applications. First and foremost, the provisional application must include a written specification that meets the enablement requirement. In other words it must describe the invention in as much detail as needed for someone skilled in the art to make and use the invention without undue experimentation. Here on FileAProvisional.com we create this written description for you.

In addition to the written description, the provisional patent application needs to include drawings, if necessary for the understanding of the invention. We encourage you to always include one or more drawings and figures. FileAProvisional.com prompts you to upload such drawings during the invention extraction, and it packages the drawings and figures along with the written description for you so you can upload them to the US patent office electronic filing system easily.

Further, the provisional patent application needs to include a cover sheet that identifies the invention and lists the names of all the inventors. FileAProvisional.com gives you the detailed instructions on how to download the fill out the coversheet. Finally, the provisional patent application needs to include the US patent office filing fee. This fee changes time to time, and it is $65 for micro entities (most small inventors with fewer than 4 prior patent applications), $130 for small entities (individual inventors and small companies), and $260 for large entities (companies with more than 500 employees). At the end of your application, FileAProvisional.com determines your filing status and informs you of that for your convenience.

Why are provisional applications important for startups?

Startups by their nature are operating on the edge of the known technologies or scientific fields. There is always a race and a competition to raise money and ramp up the business. To the extent that the business of the startup depends on innovations that can be patented, seeking patent protection gives the startup the ability to protect their inventions, keep out their competition, and create business assets in the form of patents that can be valuable in the business context. Since the rate of change in technology, what is called the 'speed of innovation', is higher today than it has ever been, it serves startups well to file provisional patent applications as they continue to develop their products.

We understand from empirical data that startups with valuable patent positions raise funding quicker, at better terms, and when it is time to exit, they are more likely to exit and are able to exit at better valuations.

How detailed does the provisional application need to be?

The written disclosure requirement for a provisional application is the same as the disclosure requirement for a non-provisional application. In other words, a provisional application must describe the invention in as much detail as it would have to be described in a non-provisional application. The key point is that the later filed non-provisional patent application, benefiting from the filing date of the provisional application, must be based only on the material included in the original provisional application, and no new matter. Otherwise the new matter will not have the benefit of the filing date of the provisional application - simply because it wasn't described back then.

More formally, the written description of a provisional application (as well as a non-provisional application) must be enabling. 'Enabling' means that the patent application must describe the invention is as much detail as needed for a person skilled in the art (technology area or scientific field) to be able to make and use the invention without undue experimentation. Therefore the 'provisional' designation does not mean it can be described with less detail compared to a non-provisional application at all. Moreover, the description must disclose the best mode that the inventor contemplates for carrying out the invention.

The questions on FileAProvisional.com are organized in a manner that facilitates extracting of the invention from the inventor in a progressively more detailed and specific stages. We guide the inventor to not only describe the invention as it was contemplated, but also unearth other uses or other strategically important aspects that all but the most experienced inventors often overlook.

How is a provisional application followed by a non-provisional application?

A provisional patent application has a pendency of twelve months and it is not examined during that pendency. The application expires, and can not be revived at the end of the twelve month period. Therefor the provisional application must be followed by a non-provisional application which does include claims and which will be examined by the US patent office. There are two ways this can be done. The most common way to do this is to file a non-provisional patent application before the expiration of the twelve months from the filing of the provisional application, and in the non-provisional patent application claim priority to the provisional patent application. This is by far the most common way to follow the provisional application with a non-provisional application. The second, and a relatively rarely used method, is to convert the provisional application to a non-provisional application.

How did FileAProvisional.com come about?

FileAProvisional.com was created by a prolific inventor who has close to 400 issued and pending US patent applications, who is also a patent agent, and was named one of the top IP strategists in the world by the IAM Magazine, besides being an angel investor in technology startups and in startup accelerators. The experience of inventing, building technology products, managing intellectual property portfolios, and working with tech startups over many years have highlighted the need for a cost-effective, fast, and easy way for small inventors and startup companies to create patent applications. The tools that are available to larger companies are simply not accessible to others. To address this gap, we set out to build a suite of products. The FileAProvisional.com is the first of these products for small inventors and startup companies.