Should You File a Provisional or a Non-Provisional Patent Application?
One of the most common questions I get is whether someone should file a provisional or a non-provisional patent application. First, what is the difference?
Provisional Application: A placeholder patent application that is never examined, but can guarantee you an early filing date.
Non-Provisional Application: A standard patent application that gets examined by the patent office.
Either way, you can say that you have a “patent pending”, but why would you want to file a provisional if it’s never going to be examined (and therefore, can never be granted)? The answer: time and money. A provisional patent application is faster and cheaper to prepare.
Why is a provisional application cheaper to prepare? It has fewer requirements. For example, a provisional application does not need to include claims (which usually require an experienced practitioner to produce), it does not need professional black and white drawings, and it does not need to be formatted or organized like a patent application. In its simplest form, an inventor can write up their description of the invention, and file that writeup as a provisional application.
I myself do this sometimes for my own ideas. If I come up with an interesting idea, I simply write a few pages of description and file it with the patent office. The fee is pretty modest, and it just takes a few hours.
Of course, if you ever want to get an actual patent, you need to convert the provisional application into a more formal non-provisional application. But filing a quick provisional can give you the peace of mind to start talking to people about your invention without risking someone else taking your idea.
However, there are two main reasons not to file a provisional. First, since a provisional is informal it sometimes doesn’t capture the invention in the way an experienced patent practitioner would. That is, it’s nice that you don’t have to file claims but the claim drafting process can help you do some soul searching and find out what your invention is really about (from a legal perspective, anyway).
The second reason not to file a provisional is time. It secures your place in line, but if you just want a patent as soon as possible (and you have the money lined up to pay for a professional product), you might as well just do the thing right the first time.
So there it is. If you want to save money in the short run (especially if you aren’t sure whether an idea is valid) but you just want to plant your flag in the ground and get an early filing date, file a provisional. If you have the money and you want to get the examination process started, file a non-provisional.