How to File a Provisional Patent

So, what is a provisional patent? A provisional patent, or provisional patent application, is a simplistic version of a patent application that acts as a way to protect your ideas and inventions while you test your ideas and prepare an application for a nonprovisional patent. Provisional patent applications may be filed for utility and plant patents but not for design patents.

Provisional patents serve one primary purpose: they act as a placeholder for your idea. The United States Patent and Trademark Office (USPTO) grants patents based on a first-to-file priority. This means that if several applicants file for patents for similar ideas, then the first to file for a patent for an idea has the priority in receiving a patent.

By filing a provisional patent you give notice of your intention to file a patent application for your invention. This acts as a placeholder for your patent application. Should any disputes arise, the date of your provisional patent application acts as the date of your invention for patent priority. This allows you to begin protecting your idea while you conduct market research, test your ideas, secure financing, and prepare a nonprovisional patent application.

Provisional patents give you the right to claim your idea as “patent pending” and act as a placeholder for your idea for one year. Within that year, you will need to file a nonprovisional patent application in order to keep your application active and your status as “patent pending.”

If your startup decides it wants to file a patent, it’s important to decide when to file for your patent. This is because of the first to file patent priority and the limited life of patent protections. 

Typically you file a provisional patent as soon as possible, or else you risk someone else filing for patent protection for a similar idea or invention first. Because the first to file for a patent application has priority in receiving a patent, you may be left with something less “new” and “unique” and/or end up without a patent at all. 

On the other hand, if you file for patent protection before you have developed a product or technology, you risk wasting valuable time under patent protection while you are still developing your technology.

Still, in most cases, you should apply for a provisional patent as soon as you decide to patent your invention. Filing for a provisional patent as soon as possible establishes your filing date and protects your IP in case anyone else files for patent protection for a similar idea or invention. It is also important to remember that in the US, a patent must be filed within one year of your first public use or disclosure of information or within one year of when you first offer your invention for sale. 

Here are some more helpful tips on if and when to apply for a provisional patent:

Consider Getting a Provisional Patent If:

• You can patent your idea or invention
• You are planning on applying for a utility or plant patent
• You believe you will receive patent protection for a meaningful aspect of your idea or invention
• You are worried someone else may patent a similar idea
• You don’t believe you can safeguard your idea as a trade secret
• Disclosing your ideas is not likely to lead potential competitors to find workarounds
• Disclosing your ideas is not likely to lead potential competitors to beat you to market in other countries
• You are planning on taking on investors, or you need to increase the valuation of the company
• You can justify the costs of applying for and maintaining a patent (which can be $10,000+)

Consider Foregoing a Patent If:

• You don’t believe you will receive patent protection, or you won’t receive protection for any meaningful aspects of your idea or invention
• You believe you can safeguard your idea as a trade secret
• Disclosing your ideas is likely to lead potential competitors to find workarounds anyway
• Disclosing your ideas is likely to lead potential competitors to beat you to market in other countries
• You are not planning on taking on investors, or you don’t need an immediate increase in the valuation of the company
• You cannot justify the costs of applying for and maintaining a patent

Consider Waiting to Get a Patent If:

• You believe you can safeguard your idea as a trade secret
• Disclosing your ideas is not likely to lead potential competitors to find workarounds
• Disclosing your ideas is not likely to lead potential competitors to beat you to market in other countries
• You are not planning on taking on investors in the immediate future
• You cannot yet justify the costs

While a provisional patent is relatively simple to file on your own, if the patent rights to your invention could be exceptionally valuable, you may want to consult with a patent attorney. A patent lawyer can help you determine what parts of your invention are patentable, file for a provisional patent, perform patent research, draft and file the patent application, respond to patent examiners, and obtain and maintain your patent.

If you decide you need an attorney to help navigate the patent process, read our guide on How to Find a Startup Lawyer for more on finding the right attorney for your startup.

To apply for a provisional patent, you’ll need to file an application in the jurisdiction where you want to file for patent protection. In the United States, that is the United States Patent and Trade Office (USPTO).

Here are the three steps you will need to take to file for a provisional patent:

1. Make Sure Your Idea Is Completely Unique
2. Fill Out the Provisional Patent Application
3. Submit Your Application

The first thing you should do when considering applying for a provisional patent is to make sure your idea is completely unique. You do this by conducting a preliminary patent search. In order to secure a patent, your invention must be non-obvious and novel. It must be new and unique. Therefore, you should first conduct a patent search in order to determine if your invention is in fact new or novel and that no other inventions exist that might invalidate your claim. 

Most patent searches begin at the USPTO database or through Google’s patent database; however, you should fan out to other types of publications as well — academic, journalistic, marketing, sales, trade magazine, even science fiction. If something resembling your invention has been previously published anywhere, it has the power to thwart the patent office's efforts to accept your idea as new, novel, and patentable.

If you do find similar patents, you may still be able to find aspects of your invention that are new or novel and may still be able to patent those elements.

However, conducting a patent search is worth the time before spending time and money applying for a patent for an idea or invention that is already patented. If this is the case, you will need to know what elements of your idea are patentable and whether it is worth preceding.

Remember, patent examiners look at patent applications every day. In most cases, the examiner will discover if there are any similar prior patent applications or references in other publications.

Next, you will need to fill out the provisional patent application. This requires filling out the application data sheet, writing a description, and gathering drawings or photographs of the invention.

Provisional patent applications are pretty straightforward, although the language can get confusing and complex. 

The four parts of a provisional patent application include:

• The Provisional Patent Cover Sheet
• The Application Data Sheet
• Drawings or photographs of the invention
• A description of the invention

We go into these in-depth in the Parts of a Provisional Patent Application section below.

You will want to take your time to make sure you understand each section of the application and the questions you answer. If you don’t understand parts of the application or you need help or advice, it is recommended to contact a patent attorney or patent specialist as filling out your application wrong or delaying your application could leave you ending up without a patent at all.

Once all of your provisional patent application materials have been prepared, you will need to submit your provisional patent application to the USPTO along with the required fees. 

The provisional patent application itself can be completed online or printed out and submitted through the mail. 

To submit your patent application in the US, you can submit a patent application online through the USPTO online filing and application system, or you can mail your patent application to the USPTO at:

Commissioner for Patents
P.O. Box 1450
Alexandria, VA 22313-1450

Once your provisional patent application has been submitted, you should receive confirmation that your application has been received and an application number. You may then begin claiming that your product is “patent pending” and have 12 months from the date your provisional application was received to file a nonprovisional patent application.

You can break down the parts of a provisional patent application into four parts:

1. Provisional Patent Cover Sheet
2. Application Data Sheet
3. Description of the Invention
4. Drawings or Photographs

The first part of a provisional patent application is the Provisional Patent Cover Sheet (USPTO Form SB/16). This is the official cover sheet for a provisional patent that lists the name(s) of the inventors, the title of the invention, and contact information for the USPTO to correspond with the applicants.

The Provisional Patent Cover Sheet also includes a checklist of enclosed application parts, a disclosure that the invention was not invented within a government agency, and an affirmation and signature at the end.

The next part of a provisional patent application is USPTO Form 37 CFR 1.76 — the Application Data Sheet. The Application Data Sheet collects information on the inventor, correspondence information, and information about the application itself, such as the title of the invention, application type, subject matter, and number of drawing sheets (if any). It then asks for information about the applicant (if the applicant is not the inventor) and an assignee (again, if any). 

In addition to the application data sheet, patent applications also need to include a description of the invention. You should describe your invention as clearly but as detailed as possible. There is no need to use overly technical information, but you should describe your invention in a way that the average person in your field would understand. 

In your description, make sure to make clear all of the key components or elements of your invention, how they function or work, and how they work together.

When describing your invention, make sure to clarify:

• What your invention does
• What your invention is used for
• How your invention works
• The elements or features of your invention
• How the components of your invention work together

The final part of a provisional patent application is the drawings or images. Although provisional patent applications are not required to include drawings, it is to your advantage to include them. Images and drawings help to clarify your invention, how it works, and how to use it, and they supplement your description. You could include drawings, photographs, computer images, or diagrams.

You will want to make sure that all of the elements of your invention can be seen clearly from multiple perspectives in your drawings and photographs. This means portraying all of the features of your invention from each perspective (front, back, sides, top, and bottom). 

If you choose to submit drawings with your provisional patent application, the USPTO has very specific guidelines for your drawings or photographs that you need to make sure to closely follow. Drawings must be done in black ink sketches — if you want to use color sketches (or images), you need to file a petition explaining why the use of color is necessary. 

In lieu of drawings, if you have a product or prototype of the actual article then you may also use photographs. Photographs can often capture and show elements in inventions that can be difficult to capture in a drawing; however, like the drawings, they will also need to be in black-and-white.

You will need to weigh the advantages and disadvantages of applying for a provisional patent. While provisional patents do not offer any patent protection, they do act as a placeholder for filing a nonprovisional patent to protect your ideas. Here are some of the pros and cons of filing for a provisional patent: 

Provisional Patents Act as a Placeholder

A provisional patent acts as a placeholder to protect your ideas from the date it is received and filed. In the United States, patents are awarded on a first-to-file patent priority. This means that the first applicant that files for a patent has the priority in receiving a patent if another patent is filed for a similar idea or invention. By submitting a provisional patent application, you secure your position in the first-to-file priority.

Provisional Patents Are Easy to File

Compared to nonprovisional patents, provisional patent applications are relatively easy to file. Provisional patent applications only require an application data sheet and a detail of your invention. They do not require a claim, and they do not require drawings or photographs; however, most patent attorneys would recommend that you at least include drawings or photographs and a claim if you have one. 

Provisional patent applications are also relatively inexpensive compared to nonprovisional patents. If you file a provisional patent yourself, the fees range anywhere from $75 to $300 per application.

Provisional Patents Increase Legitimacy

In addition to the above, provisional patents also grant a certain amount of legitimacy. When you file a provisional patent, you can label your product as “patent pending,” making your product or invention and your startup more credible. Not only have you created something that is being vetted as new and unique, but your startup will also control a potentially valuable asset if a full patent is applied for and granted.

Provisional Patents Do Not Provide Any Patent Protections

One disadvantage of a provisional patent is that it is not an actual patent. A provisional patent is only a patent application acting as a placeholder for filing a nonprovisional patent application. You do not receive patent protections for other patents until you file and are approved for a utility or plant patent.

Provisional Patents Start the Patent Clock Running

Provisional patents start the patent clock ticking. From the date your provisional patent is filed, you have 12 months to file a nonprovisional patent or lose the placeholder your provisional patent was holding for patent priority. If you wait more than 12 months, the date you file your nonprovisional patent application will become your new filing date, and you risk your IP protection if someone else filed a similar patent before filing your nonprovisional patent application.

Provisional Patents Increase the Cost of Receiving a Patent

Even if you decide to file a provisional patent without an attorney, the filing fee alone for provisional patents ranges anywhere from $75 to $300 depending on the size of your entity. This is before any of the costs of preparing and filing your nonprovisional patent application. For cash-strapped startups, this can be a high cost that could be avoided.