The obvious choice for many inventors and innovators who are either unsure of the profit potential of certain patentable subject matter or, simply, in need of more time to optimize products is to file a provisional patent application (PPA). This application allows the filer to avoid the costs and effort associated with filing a non-provisional (regular) patent application. Before going forward with this decision, though, it is wise to address the following considerations.
- Provisional patents are no guarantee of success with the non-provisional application. The requirements for PPAs are less onerous than those associated with non-provisional application. For instance, the U.S. Patent and Trademark Office (USPTO) does not conduct a prior art search on PPAs or otherwise examine the merits of a PPA.
- PPAs may not be renewed or extended. The main functions of a PPA are to set a date for a non-provisional application (12 months from the PPA filing) and prevent the patent from being copied during that period of time. Additionally, a PPA allows the patent holder to put “patent pending” on marketing materials associated with a product. This offers the PPA holder some limited legal rights. Unless you encounter extraordinary circumstances, you lose the benefits from the PPA 12 months after you file.
- PPAs buy inventors time to test a product’s commercial potential. Before sinking time and money into a non-provisional patent application, inventors may invest a smaller amount into PPAs to determine the commercial viability of the patent.
- Use plain language in your PPA. You need to explain your invention or innovation in a straightforward manner in the provisional patent application. Too many applicants make the mistake of striking a too-informal tone in their PPAs. Additionally, you should refrain from using trademarks or trade names in your PPA.
- At the conclusion of a PPA, the application is not made public. Of course, there is a requirement for patents to be published prior to being approved. However, you may safely file for a PPA without worrying about your competitors getting their hands on the subject matter through any USPTO disclosures.
Conclusion
A provisional patent application can be incredibly useful for some inventors and innovators while next-to-useless for others. The rights are limited and it only gives you 12 months to file a non-provisional patent application. However, it can buy you essential time while you test the commercial waters with your products.
Not sure if it’s right for you? Van Court & Aldridge wants to help. Get in touch with us today to speak with our legal team through a confidential consultation.
Van Court & Aldridge LLP
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