Provisional patent applications are widely recognized in the startup world as an affordable way to preserve patent rights. Yet, the details can be confusing. Below are answers to the questions most frequently asked by our clients. Please note: this information is for general guidance only and does not constitute professional legal advice.
Yes. A provisional patent application is a legitimate legal filing that provides basic “patent pending” status. However, it functions primarily as a placeholder for a formal patent application. If a formal application is not filed within 12 months, the provisional automatically expires.
Because the provisional sets the foundation for your future filing, it should include all essential details of your invention. While relatively inexpensive, the risk is that an incomplete or poorly drafted provisional may weaken or even jeopardize your rights later.
A provisional application is informal, with very few content requirements. It does not require claims, and in practice, startups often file research papers, pitch decks, or marketing materials, as long as these documents describe the invention clearly. Importantly, the patent office does not review provisional filings.
A formal patent application, by contrast, is a highly technical legal document drafted to strict standards. It requires detailed claims and is the only path to enforceable patent rights. While the strongest protection comes from a formal application, startups often begin with a provisional to quickly secure a filing date and then upgrade later.
You may use the phrase “patent pending” from the moment a provisional application is filed. It remains valid until the application expires, is abandoned, or is replaced by a formal filing. The term can be a powerful marketing tool, signaling innovation and seriousness to investors, partners, and customers.
Patent rights generally require filing before public disclosure. Once a provisional application is on file, you can safely discuss your invention—but your protection is limited to what is included in the filing. This is why many startups attach sales decks or marketing materials directly to their provisional applications.
Product development often evolves. If your invention changes significantly after filing, you have two main options:
Because patent rights favor the first to file, maintaining updated filings is critical.
No. A provisional only provides protection in the country where it is filed. However, it can serve as a priority application for filing in other jurisdictions within 12 months. Through international agreements such as the Patent Cooperation Treaty (PCT), you may extend the timeline to seek protection in multiple countries—typically up to 30 months from the first filing.
Yes. You may file as many provisional applications as you wish within the one-year life span of the first filing. This strategy is often used by startups to capture incremental improvements.
You can. A self-authored provisional may be better than no filing at all. However, the danger is overlooking crucial details or drafting errors that could compromise your rights. Ideally, your provisional should be “formal-ready” and prepared by a patent professional.
A provisional application expires 12 months after its filing date. Extensions are not available.
Yes, but with significant drawbacks. You must pay new filing fees, and—more importantly—you lose the benefit of the original filing date. Any disclosures or competing applications made in the interim may block your patent rights.
In nearly all cases, the better approach is to have a corporation own the application. This avoids later disputes over ownership and ensures that intellectual property is secured as a business asset. If multiple inventors are involved, filing individually is especially risky.
Any number of inventors can be named. Each inventor must assign their rights to the applicant—usually the company—to avoid conflicts over ownership and decision-making.
Maybe. Some jurisdictions provide a grace period for filing after public disclosure, but many—including Europe and China—do not. Disclosure (even under NDA or in a limited sale) may block international filings. To maximize options, it is always best to file before making any public disclosure.
Get Quote
.avif)
