Should I File a Provisional Patent Application?
So, you have an idea for an invention. And more than once you’ve thought to yourself, this could be the next BIG thing! And more than once, your next thought has been, yes, but someone or some company with more resources will see my idea, rip it off, and beat me to and/or in the marketplace.
If this scenario sounds familiar to you, we can help you in a variety of different ways. One of the best tools we have for protection of your invention in the United States is what is commonly referred to as a provisional patent application or just a provisional application.
A provisional application is an effective tool for protecting your invention in the United States for a number of reasons. First, a provisional patent application is relatively inexpensive to prepare and file, especially compared to a nonprovisional patent application. The filing fee paid to the United States Patent and Trademark Office (USPTO) for a provisional application is currently between $60 and $300. The attorney fees for preparing the provisional application are usually significantly less than the fees for preparing a nonprovisional application because provisional applications do not require all the formalities of a nonprovisional application or certain time-consuming, complex requirements such as claims defining the scope of your invention.
In addition to the cost benefits of a provisional application, there are several other benefits. For example, a provisional application can usually be prepared in a relatively short time frame as compared to a nonprovisional patent application. This advantage is particularly beneficial given that the U.S. patent system is a first-to-file system like most other foreign countries.¹ So if you need to get a filing date before a known or anticipated competitor beats you in the race to the USPTO, a provisional application may be your best option.
¹ For more information on first-to-file patent systems, see our FAQs webpage at www.brightwiselaw.com/faqs.
A provisional application also allows you to mark your invention as “Patent Pending” while the provisional application is pending. In some cases, simply marking your invention with “Patent Pending” may be enough to keep a potential competitor from entering the market.
Additionally, a provisional application gives you a 12-month window to “pitch” your invention to potential manufacturers, distributors, retailers, investors, partners, or anyone else who can help you turn your invention into income.² During that 12-month window, you can also offer your invention for sale or negotiate a license agreement to generate cash flow. Ideally, before the end of the 12-month window, you will have enough interest in your invention to make the decision to file a nonprovisional patent application an easy one.
Finally, if you may be interested in obtaining patent protection in one or more foreign countries, you can file a provisional application in the USPTO and receive the benefit of the provisional application’s filing date even though most foreign countries’ patent systems do not permit provisional applications to be filed in their patent offices.
If you would like to discuss whether it makes sense for you to file a provisional application in order to optimize the value and competitive advantage realized by your invention, please contact Paul at paul@brightwiselaw.com.
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² A provisional application automatically expires 12 months from its filing date, and if a nonprovisional patent application is not filed within the 12-month life of the provisional application then the filing date of the provisional application will be lost. For more information, see our FAQs webpage at www.brightwiselaw.com/faqs.
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