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A provisional application for patent (“provisional application”) is a type of patent application filed with the United States Patent and Trademark Office (USPTO) that is an initial step toward obtaining a patent for an invention. The provisional application provides a lower-cost alternative (e.g. government filing fees) to first filing a utility patent application (“utility application”). A provisional application does not have any formal requirements and, unlike utility applications, is never examined by the USPTO. The term “Patent Pending” may be applied in connection with the description of the invention once the application is filed. All provisional applications are automatically abandoned by operation of law 12 months after filing and extensions are not available. A corresponding utility application must be filed during the pendency of the provisional application (within that 12 month period) to obtain the benefits of the provisional application filing date.
Provisional applications provide three general benefits:
(1) Prior art for purposes of determining patentability of the later-filed utility application is dated from the provisional application filing date; (2) The resulting utility application is treated as prior art under 35 U.S.C. § 102(e) as of the provisional application filing date; and (3) The twenty-year patent term is measured from the utility application filing date, not the provisional application filing date. This means that the patent will expire twenty years after the utility application filing date, or twenty-one years after the provisional application filing date.
An early filing date is always important and can be crucial in circumstances of interference or litigation. A patent application that adequately discloses the invention provides proof of constructive reduction to practice as of the date the application is filed. An early filing date also helps inventors secure priority against others that may later develop the same or similar technology. Additionally, in most foreign countries a patent application filing date must predate any such public disclosure or the inventor will be barred from obtaining patent protection.
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