How To File A Provisional Patent Application

There are three primary steps for an inventor to follow when filing a provisional patent application: search for prior art, describe your invention, and fill out the application forms.

By , Attorney ● University of San Francisco School of Law
Updated by Brian Farkas , Attorney ● Benjamin N. Cardozo School of Law

Provisional patent applications are designed to be somewhat less expensive, less complicated, and less time consuming than "full" patent applications. Indeed, preparing a provisional patent application is relatively simple. Most inventors can do it in a day. To properly prepare a provisional patent application, there are three basic steps:

  1. Search for known inventions similar to yours, to make sure your idea is really new (or "novel" in patent terminology).
  2. Accurately describe how to make and use your invention.
  3. Complete and file the proper forms with the U.S. Patent and Trademark Office (USPTO).

Below are the details for each of these three steps. To learn more about provisional patent applications generally, read Basics of Provisional Patent Applications.

Find Previous Inventions

It is extremely important to make sure—before you spend time and money filing a provisional patent application—that your invention is really something new. Patent examiners will look at what is known as "prior art"—previous inventions described in patents and publications. If an examiner finds that somebody built, patented, or documented the same or a similar invention before you, you won't get a patent. In order to anticipate these potential problems and to avoid wasting time and money, you should perform a basic prior art search before filing your application.

What is prior art? It includes all previous developments that are available to the public—a tall order. The good news is that before filing a provisional application, all you really need to do is look for prior patents, publications, or sales of similar inventions. You can do this preliminary searching online.

Later, before filing your regular patent application or selling your invention, you can do a more thorough search. This involves reviewing files at the USPTO or engineering libraries. You can do this yourself or hire a professional searcher.

Describe Your Invention

Your next task in preparing to file a provisional patent application is to explain exactly what your invention is, what it does, and how to make it. Your description must be detailed enough so that anyone trained in the field is able to reproduce your invention. This may seem counterintuitive: after all, you want to protect your idea, not publicize it. But think of this as establishing exactly what it is that you are protecting.

There are two ways describe your invention: with pictures and with words.

Describing Your Invention With Drawings

The term "drawing" refers to any illustration of your invention, whether it be a line drawing, flowchart, schematic, or photograph. Although there is no requirement that you include drawings with your provisional patent application, as a practical matter it is usually necessary to do so in order to fulfill your goal of describing how to build and use your invention.

There are no rules for provisional patent application drawings, except that they must be understandable and fit into a regular file folder. You can use black and white or color photographs, computer created drawings, or handmade drawings. Obviously, your visual representation should conform to (and definitely should not contradict) your written explanation of how to make and use your invention.

Describing Your Invention With Words

When describing your invention narratively, you'll need to answer the following questions:

  • What is the name of your invention?
  • Who are the inventors?
  • Was the invention created under a government contract?
  • What does your invention accomplish?
  • What drawing figures will you include?
  • What are the parts or components?
  • How do the components connect?
  • How does the invention operate?
  • Are there other ways to construct your invention?
  • Can your invention be used in more than one way?

Your answers to the final five questions are especially important. They are the heart of the application because they describe in detail the structure of your invention, how it operates, and any alternative embodiments. This information will form the basis for your patent claims if you later file a regular patent application.

The description of your invention is often called the "specification" part of your provisional patent application. The provisional patent application specification does not have to include all of the elements required for a regular patent application specification.

Filing Your Provisional Patent Application

There are two ways to file your provisional patent application: by mail or electronically. Increasingly, the USPTO website has made electronic filing simple and convenient. Each method requires that you include:

  • basic information about who you are and what you're sending
  • your specification
  • your drawings, if any, and
  • the filing fee ($65 if you qualify as a micro entity, $130 if you qualify as a "small" entity (2018 figures). (Here's an article that explains the qualifications for "micro" and "small" entity status).

If you are ready to file for a provisional patent application, you can use Nolo's Online Provisional Patent Application. It gives you plain-English advice as it takes you step by step through the application process. It completes the required government forms, files your application, and sends you the completed forms with detailed instructions and four essential agreements. To learn more about this service, see Nolo's Online Provisional Patent Application FAQ.

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