Provisional VS Non-Provisional Patent: What Are The Differences?


It’s time to patent your great idea, but there’s two ways to go early on to protect your idea. What’s the difference between a provisional patent compared to a non-provisional patent? You’ve had your eureka moment and thought up a spectacular idea, but there’s still work to be done, questions to be answered and solved as you investigate how to go about making your idea come to fruition.

So, Whats the difference be between provisional vs Non Provisional? A provisional patent will give you protection for the time being; in fact, it means providing or serving for the time being only. From the day you file for a provisional patent, you have exactly one year (and not one day more) to file for the non-provisional patent which will protect your invention. In other words, a provisional patent is like a placeholder for your non-provisional patent.

I have filed many provisional and non provisional patents over the years. I will go over both options for you in more detail so you can get a better understanding on both.

Provisional patents are cheaper and quicker to get; however, a provisional patent will never mature into a full-fledged non-provisional patent. You must file for that before the year is up. But during that year, you can research your invention and hone it down to the very best product you can create and put on the market.

All in all, when it comes to your invention, your end goal will be a utility patent. A utility patent covers your invention, and it’s also known as a “patent for invention.” It prohibits other individuals or companies from making, using, or selling your invention without your authorization.

So, how do you get to a utility patent? Let’s say you’re running a race, and the utility patent is at the end of it—the finish line. Based on this, a provisional patent is the warm-up area leading to the starting line, and the non-provisional patent is the starting line. If you only do the warm up but never reach the starting line, you’ll never make it to the finish line.

Let’s break it down.

Provisional patent: the warm-up

In reality, there’s no such thing as a provisional patent but rather a provisional patent application. And the patent will not automatically be granted. A provisional patent will give you a “patent pending” status, which can be very useful for inventors, and while a provisional patent application is a legal document, a non-provisional patent will give you the right to sue someone for patent infringement.

Some pros of a provisional patent:

  • Much cheaper than a non-provisional 
  • Quicker to obtain
  • Anyone who has a patentable product can apply for a provisional patent
  • Be prepared to describe your product in the greatest detail possible, however you’ll have more time to perfect your product before going for the non-provisional one
  • Once filed, you can market your invention without worrying about losing your patent rights, creating a flow of cash to put towards your invention, and others besides
  • Fewer strict rules to it, so you can focus on the revealing of your invention, rather than the way you reveal it

Another benefit about provisional patents is as you continue with your invention—changing this and tweaking that—you can file additional provisional patents for each new improvement or change to your invention. In most cases, your end product will look different from your beginning product because you’ve perfected it along the way. It would be impossible to describe it to perfection at the beginning because it’s not completed yet, it’s not ready. 

So, if needed, file many provisional applications as the process moves forward, and then within12 months, file your non-provisional application and it will claim priority back to each of your provisional applications.

Non-provisional patent: the starting line

A non-provisional patent is what you file to get a utility patent (you can never get to the finish line without it), and it must contain:

  1. Title of the invention
  2. A background explanation
  3. A summary and a detailed description of what the invention is and does
  4. At least one claim
  5. Patent drawings
  6. An oath or declaration by the applicant that he/she has complied with all rules and requirements

Important to note: the summary and detailed description of what the invention is and does should be very specific, down to the smallest and most minute details of each feature of your invention. This should include any variations that would accomplish the exact same result. There are usually drawings and written specifications included in this.

What is a claim?

Relative to claims 35 U.S.C. 112 states:

The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.

In other words, the purpose of the claim(s)s is to define which subject-matter is protected by the patent (or sought to be protected) by the patent application.

Which one should you file?

In most cases, it would be a good idea to file both. While provisional and non-provisional patent applications are different in important ways, when they’re used in combination with each other, they can be a great tool for you to get the most protection possible for your invention.

A non-provisional patent application is not required for a patent to be issued, but it’s beneficial for you. During the last planning and testing stages, it maintains protection for several alterations of the invention until the final design is settled.

Not only can you make alterations to your invention during the 12-month period with a non-provisional patent application, but you can cultivate investors, and shop the invention around to potential manufactures. You can get reviews and feedback from other while having protection from theft of your invention, which will give you freedom to see how the invention may need to be tweaked to its final form. If the non-provisional patent application is not filed within 12 months, it can still be filed later, but the benefit of the earlier filing date is gone.

Why is the filing date important?

The patent filing is very important because it establishes who should get the patent first. If someone files a patent application for the same invention in between the date you filed your provisional application and your non-provisional application, you will still have priority over the other person and be first eligible for a patent. This is because you filed your non-provisional application before the provisional application expired at 12 months. 

This is the power of the provisional patent application to essentially “save the date” to be used by a non-provisional patent application later. 

Related questions:

How much does it cost to file a provisional patent?

For an individual, the United States Patent and Trademark Office application filing fee is $65 for a micro entity, $130 for a small entity, and $260 for a large entity.

How much does it cost to file a non-provisional patent?

The initial filing can range from a few thousand to over ten-thousand dollars, depending on the complexity of the invention and the number of different examples.

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