A provisional patent application (PPA) is an application an inventor files before the formal patent claim is ready. A PPA allows the inventor to use the PPA filing date in a later filed nonprovisional patent application. Filing dates are critical to patents because a person must file their patents before others file a patent for the same innovation. PPA is regulated under Title 35 of U.S.C. §111(b). A PPA is not required to have a formal patent claim or an oath or declaration. However, an inventor must meet the minimum requirements, including a written description of the invention, which should provide enough detail that would allow someone having ordinary skills in the art to make and use the invention. A PPA must also disclose enough information for a person having ordinary skill in the art to recognize that the later-filed nonprovisional application is described in the PPA. See here for more details about what should be included in the PPA.
The most important feature of the PPA is the 12 months pendency period. Once a PPA is filed, the inventor has 12 months to file the nonprovisional application. During the 12 month period, the inventor can claim the same “patent pending” language as a nonprovisional patent application which may make finding investors easier and deter competitors. The 12-month period cannot be extended. If an applicant fails to file the nonprovisional application within 12 months of the PPA’s filing date, they lose the earlier filing date given by the PPA. A nonprovisional application filed after 12 months, but within 14 months of the PPA filing date may file an application to restore the PPA date.
The PPA is not made public unless its nonprovisional application is approved and published. Therefore, fail to file the nonprovisional application on time will not lead to public disclosure of this invention.
A PPA benefits an inventor by allowing them to get an earlier patenting date. This means the patent can preempt any other patents or public disclosure after the PPA filing date. This is extremely valuable, especially when several competitors are racing to patent. Because a PPA is not examined, it gives the inventor an opportunity to file for at most a couple hundred dollars instead of the many thousands of dollars it costs to prepare the official filings. But a PPA also effectively shortens the patent’s protection period. A granted patent is usually protected for 20 years from the date the patent is filed. By filing a PPA, the patent is protected from the date the PPA is filed. Furthermore, inventors often will need to file with other countries’ patent offices, and they may publish the information based on the PPA filing date, not the nonprovisional filing date.
[Last updated in August of 2021 by the Wex Definitions Team]