Provisional patent application
Also called provisional application, provisional application for patent, US provisional, provisional filing, 35 U.S.C. 111(b)
Provisional patent application is a US national application filed under 35 U.S.C. 111(b). It needs no claims, is not examined on its merits, and establishes an early filing date that a later nonprovisional application can claim1,3.
Unless a request is made to treat it as a regular application, a provisional application is regarded as abandoned 12 months after its filing date1. A later application gets the provisional's filing date for an invention only if the provisional discloses that invention in the manner required by 35 U.S.C. 112(a) (other than best mode), the later application names at least one inventor named in the provisional, is filed not later than 12 months after it, and contains a specific reference to it2,4.
What it is and what it needs
- No claims required. A claim is not required in a provisional application (35 U.S.C. 111(b)(2))1. It also does not need a formal patent claim, an oath or declaration, or an information disclosure statement3.
- A real written description is required. A provisional application includes a specification as prescribed by 35 U.S.C. 112(a) and a drawing as prescribed by section 113 (111(b)(1))1. The USPTO accords a filing date only when the application contains a written description of the invention that complies with all requirements of 112(a)3. See patent disclosure.
- Filing date. The filing date is the date on which a specification, with or without claims, is received in the USPTO (111(b)(4))1.
- Draw what is needed at filing. A drawing necessary to understand the invention cannot be introduced after the filing date because of the prohibition against new matter, and 37 CFR 1.53(c) prohibits amendments in provisional applications3.
- Not examined. Provisional applications are not examined on their merits3.
- Not for designs. Provisional applications may not be filed for design inventions3, and a design application may not claim the benefit of a provisional application under 35 U.S.C. 119(e) (MPEP 201.04)6.
The 12-month path to a nonprovisional application
- File the nonprovisional application within 12 monthsA later application filed under 35 U.S.C. 111(a) has the same effect as if filed on the provisional's date, as to an invention disclosed in the manner provided by 35 U.S.C. 112(a) (other than the requirement to disclose the best mode) in the provisional, if it is filed not later than 12 months after the provisional, contains or is amended to contain a specific reference to it, and is filed by an inventor named in the provisional (35 U.S.C. 119(e)(1))2. The provisional must name the inventor or a joint inventor named in the later application (37 CFR 1.78(a)(2))4. If the 12-month date falls on a Saturday, Sunday or federal holiday in the District of Columbia, the period is extended to the next business day (119(e)(3))2.
- Make the benefit claim in timeThe reference must identify the provisional by application number and, for a nonprovisional application, be in an application data sheet. It must be submitted during pendency of the later application and within the later of four months from its actual filing date or sixteen months from the provisional's filing date. Failing to do so is considered a waiver of the benefit, except as the rule provides (37 CFR 1.78(a))4.
- If the 12 months are missedA provisional application is regarded as abandoned 12 months after filing and is not subject to revival after that period (111(b)(5))1. If the later application is filed within two months after the 12-month period, the benefit may be restored on petition if the delay was unintentional (37 CFR 1.78(b))4.
What it does and does not do
- Establishes an early date. It provides the means to establish an early effective filing date in a later nonprovisional application and permits use of the term "Patent Pending" for the invention3.
- Does not become a patent by itself. A provisional application will not mature into a granted patent without further submissions by the inventor3.
- Cannot claim an earlier date. A provisional application is not entitled to the right of priority of any other application under section 119, or to the benefit of an earlier US filing date under sections 120 and 121 (111(b)(7))1.
- Public disclosure. Because of the one-year grace period in 35 U.S.C. 102(b)(1), a provisional can be filed up to 12 months after an inventor's public disclosure. The USPTO adds that such a disclosure, although protected in the US, may preclude patenting in foreign countries3.
- Foreign filing. The USPTO says a provisional begins the Paris Convention priority year3. WIPO notes that priority under the Paris Convention can be claimed if later applications are filed within 12 months of the first application5.
Provisional vs nonprovisional application
| Provisional application | Nonprovisional application | |
|---|---|---|
| Claims | Not required1 | Required, but may be submitted after the filing date within the period the USPTO sets (35 U.S.C. 111(a)(3))1 |
| Outcome | Will not mature into a granted patent without further submissions3 | Examined, and a patent issues if the applicant is entitled to one under the law (35 U.S.C. 131)7 |
| Link between them | A nonprovisional application can have the same effect as if filed on the provisional's date, as to an invention the provisional discloses in the manner provided by 35 U.S.C. 112(a) (other than best mode), only if it is filed not later than 12 months after the provisional and by an inventor named in the provisional2,4 | It must contain, or be amended to contain, a specific reference to the provisional application, and the provisional must name the inventor or a joint inventor named in the nonprovisional2,4 |
Questions people ask
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Start draftingDoes a provisional patent application need claims?
No. 35 U.S.C. 111(b)(2) says a claim is not required in a provisional application1. It must still include a specification complying with 35 U.S.C. 112(a) and a drawing as prescribed by section 1131.
How long does a provisional application last?
Twelve months from its filing date. It is then regarded as abandoned unless a request has been made to treat it as a regular application1. The USPTO states that the 12-month pendency period cannot be extended3. If the last day falls on a Saturday, Sunday or federal holiday, it moves to the next business day2, and benefit can be restored on petition for a later application filed within two months after the 12 months if the delay was unintentional4.
Is a provisional application examined?
No. The USPTO says provisional applications are not examined on their merits, and it will not mature into a granted patent without further submissions3.
Can I file a provisional application after publishing my invention?
Possibly in the US. In view of the one-year grace period in 35 U.S.C. 102(b)(1), a provisional can be filed up to 12 months after an inventor's public disclosure. The USPTO notes that such a disclosure may preclude patenting in foreign countries3.
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