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Understanding the Limitations

A Provisional Patent Application is not a substitute for the full, Nonprovisional Patent Application. Filing a provisional application can help you establish an earlier filing date, but you will still have to submit a proper application within 12 months. If you do not file a Nonprovisional Patent application within that time, the provisional application will expire, and so will the early filing date.

Contents of the Application

Although Provisional Patent Applications are not examined by the USPTO, as Nonprovisional Patent Applications are, they still must contain sufficient details about the invention you want to patent. Otherwise, the early filing date may be challenged later. Compared to the full application, the provisional application is fairly simple. You need only include a comprehensive written description of the invention and any drawings necessary to understand it. The description must be accompanied by a cover sheet identifying the application as provisional and naming the invention, the names and addresses of all its inventors, contact information for your attorney, a correspondence address, and the names of any U.S. government agencies that have property interests in the application. If you need help, we make it easy to create a Provisional Patent Application, step-by-step.

The Filing Process

Once you've prepared the application, the next step is to file it with the USPTO. Note that you must submit the application within 12 months of public disclosure of the invention (regardless of whether it was sold, publicly demonstrated, or simply described in a publication). Otherwise, you forfeit the right to patent the invention. Note that you'll need to pay any accompanying fees in advance to avoid any surcharges. The amount of the fee will depend on whether you are classified as a large, small, or micro entity. Large entities pay the full price, while small and micro entities only have to pay a fraction of the standard fee.

Moving On to the Nonprovisional Application

Once your Provisional Patent application is accepted by the USPTO, you will be able to use the phrase "patent pending" in connection with the invention. However, filing the Provisional Patent application is just the first step on the road to an actual patent. Without additional action, a Provisional Application will never become a full patent and will expire at the end of the 12 month period.
When you file the actual, Nonprovisional Patent Application, remember to include an explicit reference to the Provisional Application within the document.

Not sure whether you should file for a Provisional Patent? To get help navigating the ins and outs of the patent application process, it's best to get legal advice from a qualified lawyer.

This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.

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