Does a Provisional Patent Protect My Idea?

If you have an inventive concept, you may protect it with a provisional patent before going through the complete patent process. Before assisting you in filing a patent, intellectual property lawyers and patent attorneys go through several stages. Conducting a patentability search, sketching your invention or method, and altering those drawings to better explain your ideas are just a few of the steps you must do before filing your patent with the United States Application and Trademark Office (USPTO). A provisional patent application might assist you in proving that you had the concept for your innovation while you proceed through the remainder of the patent filing procedure.

What Is a Provisional Application for a Patent?

A provisional patent application protects your idea and proves you were the first to conceptualize your invention, method, art, or design.

A provisional patent application is less expensive than obtaining a patent. A provisional patent application also requires less time. Finally, if your idea is patentable, you should file a comprehensive utility patent application to protect it.

You must file your utility patent within one year after submitting your provisional patent application, or you will lose the opportunity to file.

How Is a Provisional Patent Application Different from Other Patents?

When opposed to a standard utility patent application, a provisional patent application offers a more expedited application procedure.

You do not need to accomplish the following before filing for a provisional patent:

  • Conduct a patentability search.
  • Show that no “prior art” exists that is similar to your invention.
  • Show that your invention has usefulness.
  • Provide an information disclosure statement showing prior art that may be similar or relevant.
  • Provide patent claims, or define the scope of patent protection.

A provisional patent simply needs the submission of a thorough description of the invention and related drawings to the USPTO. In addition, a provisional patent is less expensive than a utility patent.

It usually takes 10 to 12 weeks to process a provisional patent application. If the USPTO finds no problems with the patent application, a utility patent application, also known as a non-provisional patent application, can take five to six weeks.

If the USPTO finds that your non-provisional patent fails to demonstrate that your invention is novel and valuable, you may be required to amend your drawings and paperwork and reapply. A provisional patent application, on the other hand, gets approved the first time.

However, keep in mind that a provisional patent does not get you a patent on your innovation. The USPTO deems your idea “patent pending” once you obtain your provisional patent.

What Does Patent Pending Mean?

You can label your idea as “patent pending” if you’ve submitted a provisional patent application. You may share your concept, start promoting your creation and tell people about it with the confidence that you developed it first.

Consider “patent pending” to be a notice to other inventors that you’ve already come up with the concept and submitted a provisional patent application. It also ensures that you are the “first to file.”

Understanding First-to-File Status and Why It Is Important

If someone else applies for a utility patent on April 20, 2020, but you filed a non-provisional patent application on March 3, 2020, you have a better chance of acquiring the utility patent for the device, method, or invention.

Someone else conducting a patentability search would discover your provisional patent application on record. Your innovation would be regarded as “prior art,” and the other party would have to demonstrate that their invention is considerably different from yours or constitutes a significant technological breakthrough.

In 2011, the United States amended its patent rules to become a first-to-file country. Before 2011, the first person who could prove they invented the invention, development, technique, or design received a patent. Today, the patent is awarded to the first individual who files. A provisional patent grants you the right to submit a non-provisional utility patent.

Three Ways a Provisional Patent Application Can Help Inventors

A provisional patent can help prevent another person or group from stealing your concept and claiming it as their own.

You can do the following after filing a provisional patent application:

  • Seek investment funding for your invention
  • Begin a patentability search as part of the non-provisional patent application process
  • Market your invention
  • Tell other people about your invention with the knowledge that it is “patent pending”.

Can a Provisional Patent Keep Someone from Stealing Your Idea?

No one can legally prevent someone from stealing an idea or an innovation. If someone tries to steal your intellectual property, you have redress through provisional patent applications, patent laws, and patent attorneys.

If someone tries to steal your idea after you file a non-provisional patent application and acquire a patent for it, you can sue the individual for patent infringement.

If you win the lawsuit, the individual who infringed on your patent would have to pay you damages, which might include lost money from replicating, using, or selling your innovation.

If you establish that someone knowingly stole your idea and it harmed your income or business after receiving the patent, you might be awarded up to threefold damages.

What to Do If Someone Ignores Your “Patent Pending” Notification

If you’ve submitted a provisional patent application and learn that someone else is utilizing or selling your idea or innovation, you have the following options:

  • Send a cease-and-desist letter, warning them that your invention is patent pending
  • Wait until your patent is approved and sue them for patent infringement
  • Wait until you’ve received your patent and grant them licensing rights to continue manufacturing and selling your invention

In many circumstances, a cease-and-desist letter is sufficient to compel the violator to stop using or selling your innovation. They might not have realized you have a patent on the invention. They most likely do not want to get into legal problems.

You could want to get the help of a patent attorney to prepare the letter since a document from an attorney appears more genuine.

In most circumstances, having “patent pending” written on your items will prevent individuals from copying your concept on purpose. However, before calling your innovation “patent-pending,” you must first file a provisional patent application.

You might face fines of up to $500 per offense if you fraudulently mark an innovation as “patent pending.” If you have ten of the same innovation on a store shelf, you might face a $5,000 fine if they were falsely promoted as patent pending.

How Do I File a Provisional Patent Application?

You can file a provisional patent application with the USPTO in the same way that you would a non-provisional utility or design patent.

A provisional patent application requires less information and costs less to file.

A provisional patent application must include the following:

  • A cover letter with the required information, as outlined by the USPTO.
  • The filing fee.
  • The names of all inventors.
  • A written description of the invention.

Any relevant drawings required to comprehend the patent should also be included in your provisional patent application. Once you’ve filed the provisional patent application, you can’t add additional content to the patent. As a result, it’s critical to ensure that you’ve covered everything necessary to demonstrate the uniqueness and utility of your idea.

After gathering the necessary information and obtaining the provisional patent application form, you can file by mail or securely online using EFS-Web.

To file electronically using EFS-Web, follow these steps:

  • Prepare documents in PDF format.
  • Attach the PDF files.
  • Validate the PDFs are compatible with USPTO’s internal automated information systems.
  • Submit the documents.
  • Pay the filing fee through real-time payment processing.

Fillable EFS-Web forms can also be used to assure interoperability with USPTO systems. This is something your patent attorney can assist you with.

Is it possible to save money by filing a provisional patent application?

A provisional patent application is not free. You will still have to pay for a non-provisional patent application when the time comes. As a result, it does not save money. However, it might save you time and money by ensuring your right to submit a patent.

If someone else comes in and tries to patent your innovation while you’re still performing a patentability search, the “patent pending” status of your invention offers you first-to-file rights.

A provisional patent application can save you money in the long run.

Should I File a Provisional Patent Application?

A provisional patent application can help protect your idea from theft while you:

  • Secure funding or find investors.
  • Find supply chain partners.
  • Set up manufacturing systems.
  • Gauge the market response to your invention.
  • Conduct a patentability search for your invention.

Simply: Before discussing or sharing your concept with anybody else, file a provisional patent application, which attorneys refer to as “public disclosure.”

Within 12 months of public disclosure, you must file your provisional patent application. If you wait too long to file, your non-provisional patent application may be refused.

Fill out a provisional patent application and send it to:

  • Protect your idea.
  • Discourage others from copying it.
  • Secure your standing as the “first-to-file” a patent on your invention.

Allow The Patent Professor® to assist you with this critical initial step in patenting your intellectual property.