What is a provisional patent application?

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In addition to the regular patent application procedure, it is possible to file what is called a provisional patent application. A provisional patent application can be thought of as a placeholder application. It has many of the advantages of a regularly filed, nonprovisional patent application, but it differs in at least two important ways.

The first difference between a provisional patent application and a regular utility or nonprovisional patent application is that a provisional application has reduced formality requirements. Unlike nonprovisional applications, provisional patent applications are not subject to specific formatting or organization requirements, text and figures can be handwritten, there is no spelling requirement, no need to discuss prior art, no requirement for a summary or an abstract, and significantly, no requirement for patent claims, which are essential in order to receive a filing date for a nonprovisional application.

The second major difference between a provisional patent application and a nonprovisional application is that the provisional application, once filed, is never actually examined by the Patent Office. The provisional application thereby enables filing a simplified invention disclosure to secure a fixed date for purposes of both United States and foreign priority. Provisional applications can provide a lower cost, expeditious and informal mechanism for driving an early stake in the ground in claiming rights to an invention.

Along with this informality, however, lie significant traps for the uninitiated and the careless. Two essential requirements that absolutely must be adhered to in provisional patent applications are that first, the specification (the written description of the invention) must provide a complete explanation of the invention, and second, that the specification must teach the best mode for practicing the invention (the inventor’s preferred embodiment). Despite the leniency in precision and formality that the Patent Office permits in provisional patent filings, there still is a need for the inventor to completely disclose the invention.

Learn more by visiting our microsite Provisional Patent Help, a resource to discover, understand, and file provisional patent applications.

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About the Author

John Ferrell is a founding partner of Carr & Ferrell LLP, one of Silicon Valley's foremost technology law firms, and specializes in patent and intellectual property law matters. He is the Chair of the firm's Intellectual Property Practice Group.