What is a Provisional Patent?

A provisional application is a patent application filed with the USPTO that serves as a low-cost option for establishing a priority date. Like regular patent applications, provisional applications comprise of the specification and drawing (if drawings are necessary for the understanding of the invention). However, provisional applications are not required to have claims, an oath or declaration from the inventor or an Information Disclosure Statement (IDS). Furthermore, provisional applications are not published nor are they examined on the merits. Currently, the provisional application filing fee is $260 for regular applicants, and $130 and $65 for small entities and microentities, respectively.

A provisional patent application can never become a patent and it automatically expires after 12 months with no extensions available. Therefore, in order to get patent protection, the applicant must do one of two things before the 12-month anniversary. The applicant must either (1) file a corresponding non-provisional application for patent claiming benefit to the provisional application or (2) file a petition to convert the provisional application into a non-provisional application. It should be noted that option 2 carries the negative effect in that the term of any patent stemming from a converted non-provisional application is calculated from the filing day of the provisional application.

For those interested in international patent filings, the provisional application also starts the clock for filing a corresponding PCT application or a direct foreign filing via the Paris Convention. Either of these steps must also be taken within 12 months of the filing of the provisional application.

So in summary, a US provisional application is an inexpensive way to establish your priority date and get the patent process started. Under the US’s new first-inventor-to-file system, it is especially advantageous for inventors to file as early as possible. Provisional patent applications allow you to do just that.


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