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Provisional Application / Provisional Patent

A Provisional Patent Application gives a 12 months “Patent Pending” Status. This gives the applicant an early filing date, which could be later used as the filing date for a utility patent. Most new products coming out to the market start off as a provisional application. This gives its filler the time to check if the product has interest with potential buyers, investors, and manufacturers, with fewer worries of counterfeit, and at a fraction of the price of a full utility patent.

Provisional vs. Utility Patents

Utility patent applications are different from provisional applications and must never be seen as one and the same. Applications for utility patent undergo a different exam process than provisional applications. The United States Patent and Trademark Office allows an expiration date of one year after provisional applications are set up. This facilitation of a guaranteed filing date early in the patent application follow-up and the prevention of patent-barring are useful.

To claim the advantage of the earlier filing date of the provisional follow-up, patent applications should be filed during the 12 months validity period. It is helpful to have an earlier filing date for several reasons. For example, it restricts the number of previous art which may be used with the patent application during the prosecution process. To defeat the patent only former art that is dated before the earlier filing date can be initiated.

It may be risky to get a provisional if an applicant is interested in the rights of a foreign patent unless the applicant exercises exceptional care with the prior provisional actions. This is due to the fact that investors are convinced that they can go ahead and sell their inventions once a provisional application has been filed and becomes patent-pending. Although provisional patents are often filed prior to a public revealing, the accruing benefits of a provisional filing date will not be realized with a late filing, especially if the content was not included in the provisional before. The implication from this in the U.S. is that for each subject matter there is a different filing.

Utility applications generally cost more than provisional applications hindering the costs for the US application process. Some applicants choose to utilize the provided provisional one year opportunity to promote and price-test their inventions for commercial viability. If after 12 months the viability is not feasible, the inventor can offer his invention to whoever wants it. However, a patent has to be filed if the applicant decides that there is a market and he wants to continue the attempt to get it sold.