Is it possible to file a high-value, high-quality patent application within just two days? Most people would say no, believing that it’s impossible to draft a high-value, high-quality patent in such a short time frame.

But what if you had 12 months plus 2 days? The answer is certainly yes.

This brings us to today’s topic: the provisional application.

Effectively utilizing the provisional application strategy not only allows you to secure a filing date within two days but also grants you an additional 12 months and 2 days to prepare a high-quality patent application while enjoying the benefit of an earlier priority date.

PART 1: What is a Provisional Application?

In our previous article, “Should You Apply for a Patent as Soon as Your Product is Developed?” (click to read), we mentioned that patent applications should be filed as early as possible. Sometimes, you need to use certain strategies to secure an early filing date, and one such strategy is the provisional application.

Compared to a non-provisional (formal) application, a provisional application has lower requirements for the submitted patent documents, making it possible to prepare within two days. The primary purpose of filing a provisional application is to secure an earlier filing date, thereby gaining a time advantage and protecting your technical solutions from being preempted by others.

Of course, after submitting a provisional application, you need to file a non-provisional (formal) application within a specified period (usually 12 months). The non-provisional application can then benefit from the filing date of the provisional application.

In the U.S. patent system, provisional applications are a legitimate type of application. However, in most other countries, there is no equivalent of the provisional application. Nevertheless, by making reasonable use of the existing patent system of other countries, similar results to those of a provisional application can be achieved.

PART 2: Quality Requirements for Provisional Applications

A U.S. provisional application has no specific requirements regarding form, format, or language. You can even submit a technical disclosure as a U.S. provisional application.

PART 3: Can a U.S. Provisional Application be Granted?

A U.S. provisional application is neither published nor examined and, therefore, cannot be granted as a patent.

In the U.S., after filing a provisional application, the applicant must file a non-provisional application within 12 months. The non-provisional application can then benefit from the filing date of the provisional application. Naturally, if the non-provisional application is not filed within this timeframe, the provisional application loses its value.

The United States Patent and Trademark Office (USPTO) only publishes and examines non-provisional applications. The provisional application is merely a placeholder and cannot proceed to grant on its own.

Additionally, in the U.S., provisional applications are only applicable to utility patents and plant patents, not design patents.

PART 4: Unexpected Benefits of U.S. Provisional Applications

Additionally, a provisional application can extend the term of patent protection.

According to U.S. patent law, the term of protection for a non-provisional application that follows a provisional application is calculated from the filing date of the non-provisional application. For instance, the 20-year term for an invention patent begins on the filing date of the non-provisional application, not the provisional application.

In other words, with a provisional application, other competitors cannot file patents for the same technology, while the start date for the protection term is delayed beyond the provisional application date, effectively extending the duration of patent protection.

Conclusion

Effectively utilizing provisional applications allows applicants to have greater control over their filing dates. Of course, submitting a provisional application incurs additional costs, which applicants need to consider comprehensively.