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Should I file a provisional patent application or a utility application?

This question is front and center for many startups, entrepreneurs, and independent inventors. Let me start by giving you an overview of a provisional patent application. Patent attorneys and patent agents often say that a provisional patent application acts as a “placeholder application” at the United States Patent and Trademark Office (“Patent Office”). We say this because a provisional patent application acts to secure a filing date for your invention at the Patent Office. The United States has recently converted to a “first to file system.” In other words, if two people invent the exact same product independently, it will be a race to the Patent Office to file an application on the product. A provisional patent application is an inexpensive way to get a filing date at the Patent Office and can be used to quickly get an invention on file at the Patent office. Moreover, provisional patent applications have several advantages. First, filing a provisional patent application is much cheaper than filing a utility application and does not require following all the formalities of a utility application. Inventor’s have been known to file a powerpoint presentation of their invention to secure a filing date before a competitor beats them to the patent office.mPatentDirection does not recommend you do this! Second, when you file a provisional patent application, you can advertise your invention as “patent pending!” 

“when you file a provisional patent application, you can advertise your invention as “patent pending!”

A provisional patent application must be converted to a utility application within a year of filing the provisional patent application. In other words, if you file a provisional patent application, you have one year to decide whether you want to pursue the invention at the Patent Office, draft a utility patent application, and submit the utility application to the Patent Office. Failure to convert the provisional patent application to a utility patent application results in your provisional patent application becoming abandoned and you will not be able to revive it under any circumstances (please leave a comment if you’d like to learn about abandonment). 

Who should file a provisional patent application? You may want to file a provisional patent if you want to take some time to save up the money to draft and file a utility patent application. You might also want to file a provisional patent application if you’re not sure you want to pursue the invention or if you want to (or need to) file a patent immediately because of a bar date (please see module on “bar dates”) and don’t have time to draft a formal utility patent application.