Provisional vs. Non-provisional Patents: The Difference

For someone who is looking to protect an invention for up to a year at minimal cost in order to test the commercial waters, it may be worth looking into a provisional patent application.

For example, an inventor may well want to seek out prospective manufacturers for an invention to license for royalties before investing in a non-provisional patent, which can be much more costly.

Non-provisional Patents

A non-provisional patent application is what most people think of when they think of the “patent” concept. Such a patent can be of either a “design” or a “utility” type. Before going further, it is important to note that a provisional patent application is not valid with “design”-type materials; a provisional patent application can only be filed for inventions of the “utility” type. In broad terms, a “utility patent” protects the way an article is used and works, while a “design patent” protects the way an article appears.

Applying for a non-provisional patent establishes a filing date and it initiates the review process by the United States Patent and Trademark Office (USPTO).

Provisional Patents

A provisional patent application provides temporary protection for up to year from the date of filing. It also establishes a filing date, but it does not initiate the review process by the USPTO—an important distinction to keep in mind should the inventor wish later to file a non-provisional patent application.

Patent Pending

As mentioned above, a provisional patent is less expensive than a non-provisional patent and it allows the inventor a year’s time in which to market and/or develop an invention using the familiar term “patent pending”. In addition, a provisional patent application does not require the patent claims, a major component of a non-provisional patent application.

As can be presumed from the lack of a review by the USPTO, a provisional application does not automatically become a regular patent 12 months after the date it was filed. In order to obtain a non-provisional patent, an inventor is required to submit the appropriate application within one year of the date a provisional patent application was filed in order to use that same filing date.

A provisional patent application is typically less involved than a non-provisional application, and may include as little as a cover sheet, the name of the inventor and some bibliographic information, a description of the invention (here, invention claims are not necessary),  a drawing if it is necessary to understand the invention, and a filing fee.

A provisional patent application can be useful when a fairly quick and inexpensive form of legal protection is desired.  Compared to a non-provisional patent application, a provisional patent application can be put together and submitted with less effort and expense, while effectively buying an inventor more time in which to develop the product and determine how it might be marketed.

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