Should I file a provisional or a non-provisional application?

Should I file a provisional or a non-provisional application?

A provisional patent application gives you one year of quiet while a non-provisional patent application is the first step toward a legally recognized patent. Both are patent pending and both can help you be the first to file.

A provisional patent application is meant to help protect your idea and give you time to perfect it — essentially, hold your place in line. You can submit as soon as you have a basic design for your idea.

Once you’ve researched your idea thoroughly, and the design and function are ready, you can then apply for the non-provisional patent.

Keep in mind, US patent laws require inventors to submit an application for a patent within a year of showing the product in any way. If you don't submit within that time frame, you lose your chance to file.

Outside the US, you have to file before publishing your idea.

Differences between a provisional and non-provisional patent application include:

  • A higher filing fee for a non-provisional patent application.

  • An inventor might be able to submit a provisional application on his or her own. But a non-provisional application usually requires a patent agent or other legal assistance.

  • A non-provisional patent application requires an information disclosure statement, declaration and patent claims, while a non-provisional application does not.

  • Provisional patent applications are not public records. Instead, they are confidential documents that only USPTO officials can access - until a non-provisional patent application claiming priority from the provisional is published.

  • Only a non-provisional patent application will result in the issuing of a patent.

  • When you file a non-provisional patent application, the filing date will mark day one of the 20-year patent term, while a provisional patent application filing date does not factor into the 20-year term.

If you have additional questions about provisional versus non-provisional patents or anything related to the patent process, contact us.


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