Provisional Patent Applications: Quickest Way to "Patent Pending"
Filing a provisional patent application guards against rip-offs while buying time to file a regular patent application.
Independent inventors are often faced with a nettlesome issue: how to show their brainchild to potential manufacturers without the risk that the manufacturer will "steal" the invention. Luckily, Congress has authorized a procedure that offers protection when shopping new inventions -- the provisional patent application (PPA).
How to Prevent a Manufacturer From "Stealing" Your Invention
Although most potential manufacturers can be trusted to play fair, few inventors wish to rely exclusively on trust when disclosing an invention. But for a variety of sensible reasons, most manufacturers are unwilling to sign binding nondisclosure agreements before even seeing an invention. (If you do find a manufacturer willing to sign a nondisclosure agreement, you can learn more about the relationship between trade secrecy and inventions here).
Traditional Approaches to Protecting Inventions
To resolve this standoff, inventors have traditionally used two approaches to protecting their invention when disclosing it to potential manufacturers.
Document building and testing process. Some build and test an invention before arranging a show-and-tell session with a potential manufacturer. If they have carefully documented the building and testing process, they can later disprove the manufacturer's claim to be the true inventor if a ripoff is attempted.
File a regular patent application. Or, an inventor may file a patent application and mark the invention with a "patent pending" label before shopping it around. Few manufacturers will risk ripping off an invention if they realize they may later be hit with a patent infringement lawsuit if the patent is ultimately issued.
For more on the regular patent application process, see Understanding Patent Applications.
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Problems with the traditional approaches. Unfortunately, both of these approaches are increasingly flawed. As technologies become more complex -- biotechnology, nanotechnology and software development come to mind -- independent inventors find it harder to build and test inventions based on them. And filing a regular patent application is a lot of work and can be very expensive if an attorney is used.
The Solution: File a Provisional Patent Application
Congress gives inventors a third approach: File a provisional patent application (PPA) on the invention. Filing a PPA allows an inventor to claim "patent pending" status for the invention for 12 months, but involves only a small fraction of the work and cost of a regular patent application.
How to File a Provisional Patent Application
To file a PPA, you must pay a $100 fee ($200 for large companies) and file:
- a detailed description of the invention telling how to make and use it (the legal standards for the description are the same as those for a regular patent application)
- informal drawing(s), if they are needed to understand how to make and use the invention, and
- a one-page cover sheet.
If you have written a technical paper for a journal, you can submit it as the description of the invention, as long as it meets the legal standards for describing how to make and use the invention.
What you don't need. Because the PPA is considered a legal substitute for building and testing the invention (which is called "actually reducing the invention to practice") and is not intended to be a regular patent application, you don't need to include:
- an abstract or summary
- patent claims
- a Patent Application Declaration (a statement under penalty of perjury that you are the true inventor and have disclosed all information you know that would be relevant to the examination of the application), or
- an Information Disclosure Statement (disclosure of all relevant prior art known to you).
Should you do a patent search? Before you file a regular patent application, you must do a search to see if your invention already exists and is patented. Should you do this before filing a PPA? The patent world doesn't agree on the answer.
Some say it's not worth the effort to do a search -- better to file the fee and search later. Others take the middle ground -- do a free Internet search before filing the PPA and then pay for a more extensive search later.
For more on searching for prior patents, see Patent Searching Online.
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