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What is a Provisional Patent

11. What is a provisional patent application?

A provisional patent is a utility patent filing that does not necessarily include any claims. Pursuant to patent law, the filer can file a complete provisional patent within one year of the first public use or offer for sale of the invention. This then allows the filer one year from the date of disclosure to file for a non-provisional, utility patent. Basically, the provisional patent allows inventors to file and disclose the invention to the rest of the world. If the non-provisional patent is filed within the year, the date of filing of the non-provisional patent is retroactive back to the date of filing of the provisional patent. This allows an inventor one year of protection while she is still developing the attributes of the invention that will later be claimed for patent protection.

•    Note: The non-provisional patent application must reference the provisional patent filing. Failing to file a non-provisional patent application results in any protections offered by the provisional patent being lost and the creation cannot be subsequently patented.

Benefits of Provisional Patent Filing

The benefits of completing a provisional patent filing are as follows:

•    Public Disclosure – This disclosure starts the one-year period to file a non-provisional patent. Filing the provisional patent provides for an initial year of protection, as the non-provisional patent application will back date to the filing of the provisional patent;

•    Continued Research & Development – The non-provisional patent provides protection while continuing to develop the product and research the market. The inventor can spend the time developing the claimed elements of the invention to incorporate into the non-provisional application;

•    Pre-marketing – Filing the provisional application allows the inventor to market the product with a degree of protection while the non-provisional patent application is in the works;

•    Public Notice – The filing provides notice to the world that the creation (to the extent disclosed) is or will be subject to intellectual property rights (i.e., “patent pending”) and should not be copied for commercial purposes;

•    Confidentiality – Leaving off the claimed attributes keeps elements of the patent confidential (as it is not yet fully disclosed to the public); and

•    Multiple Filings – The filer can file multiple provisional patents and later incorporate them all into a single, non-provisional patent application.

•    Discussion: How do you feel about the concept of allowing individuals to file a provisional patent? Are you convinced the benefits of this type of patent filing are necessary or deserved? Why or why not? Can you think of any downsides to making a provision patent filing?

•    Practice Question: Bernard is working on computer software that allows businesses to automate a great deal of its marketing functions. He is considering filing a provisional patent application. What are the benefits to Bernard of making such a filing?

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