Basics of Provisional Patent Applications

Filing a provisional patent application protects your invention while buying time to file a regular patent application.

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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 at www.ndasforfree.com.) Also, keep in mind that under recent patent law revisions (The America Invents Act passed September 12, 2011), any public sale or disclosure prior to filing a patent application will jeopardize your ability to obtain patent protection.

Traditional Approaches to Protecting Inventions

On March 16, 2013, the U.S. adopted a first-to-file system. Under this system the first inventor to file an application (not to invent), gets the patent. Prior to that date, inventors  could document the building and testing process to prove an earlier date of invention. Under the new law that is not possible. An inventor can still 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 Nolo's article Understanding Patent Applications. Unfortunately, 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 another 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.

A provisional patent application consists of text and drawings that describe how to make and use your invention. It's a short document -- often five to ten pages -- written in plain English, with none of the arcane language used in regular patent applications. (To learn more about the requirements for filing a PPA, read Nolo's article Provisional Patent Application Procedures.)

Once this is done, you have established an effective filing date for your invention, and you can use the term "patent pending" on your invention -- at least for 12 months from that filing date. If you file a regular patent application within one year of filing the PPA, you can claim the PPA's original filing date to prove that your invention came before other similar developments.

How a PPA Differs from a Regular Patent Application

It's cheaper. A PPA costs $65 for a micro-entity, $130 for a small entity and $260 for a large company, rather than the thousands or tens of thousands of dollars it takes to do patent searches and pay patent lawyers in preparation for a full patent application.

It's easier. You can skip some of the complications involved in a patent application, such as the 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) and the Information Disclosure Statement (a disclosure of all the relevant information known to you that is related to the originality of your invention). (For more on searching for prior patents, see Nolo's article Patent Searching Online.)

It does not result in a patent. A provisional patent application will not, by itself, get you a patent. The PPA only lets you preserve your rights while you decide whether to file for a regular patent; if you want the regular patent, and the benefits that come with it, you will have to file a regular application within a year after you file your provisional application -- and the patent must be approved by the United States Patent and Trademark Office. (To learn about the pros and cons of filing a PPA, read Nolo's article Deciding to File a Provisional Patent Application.)

Next Steps

If you are ready to file for a PPA, you can use Nolo's Online Provisional Patent Application. This service gives you plain-English advice as we take you through the steps to create your own PPA. We complete the required government forms, file your application, and then send you the completed PPA, detailed instructions, four essential agreements, and the book What Every Inventor Needs to Know About Business & Taxes, by Stephen Fishman (Nolo). To learn more about this service, see our Online PPA FAQ.

Or, for more guidance on preparing a provisional patent application yourself, consult Nolo's book Patent Pending in 24 Hours, by Richard Stim and David Pressman (Nolo).

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