If your invention has already been offered for sale to the public, then you’ve probably lost your opportunity to patent it.
There was a time when you could try to sell your invention before you filed for a patent. Inventors had one year from the date they first tried to sell their inventions to file a patent, but that one-year grace period disappeared on March 16, 2013 when new legislation went into effect.
Today, if you try to sell or actually sell your invention without having first filed for a patent, there is a good chance your possible patent rights will be barred for all patent applications filed after the first date that you sold or offered to sell your invention.
Long story short, before you attempt to sell an invention, you should file a patent application.
Hold Your Place in Line with a Provisional Patent
Recently, the U.S. has shifted from a “first-to-invent” system to a “first-to-file” system. That means the first inventor who submits a patent application is given priority to the rights.
However, not every inventor has the resources to move forward with a full patent application. Fortunately, you can start the process of filing your application before someone beats you to it by filing a provisional patent application.
In simplest terms, a provisional patent application requires less information to be filed than non-provisional applications. Like non-provisional patent applications, provisional applications are national applications filed with the U.S. Patent & Trademark Office (USPTO), but that’s where the similarities end.
You can file a provisional application with only a written description of your invention. Drawings, claims, and other information that must be included with a non-provisional application are not required. Your provisional application isn’t actually reviewed by the USPTO. Rather, it holds your place in line for your anticipated non-provisional patent application.
Keep in mind, your place in line will only be held for 12 months, so you have to file your non-provisional application within 12 months of filing your provisional application or you’ll lose your spot in line and your rights.
Top 3 Benefits of a Provisional Application
1. Timing
A provisional patent holds your place in line in the “first-to-file” system, so you can claim your invention as soon as possible while you work out all of the details. They’re also much quicker to file than a non-provisional patent.
2. Simplified
A provisional patent application requires less information than a non-provisional application. You can submit a written description of your invention and continue to work on the wording of claims, drawings, and so on for 12 months until you’re required to submit them as part of your non-provisional application.
3. Cost
A provisional application is much less expensive than a non-provisional application. Your filing fee could be as low as $130 if you qualify as a small entity or $65 if you qualify as a micro entity.
Top 3 Negatives of a Provisional Application
1. Examination
A provisional application will not be reviewed by the USPTO. That means your non-provisional application could be denied when you submit it at a later date.
2. Limitation
A provisional application is limited to the written description of the invention. If you file a non-provisional application at a later date that changes some features of the invention or adds new features that were not described in the provisional patent application, those features will not have the same priority that the features in the provisional patent had. In other words, a space wasn’t held in line for those changed or new features.
If you need to make changes to your written description before you’re ready to submit a non-provisional application, file another provisional application to get your place in line.
3. Finite
A provisional application cannot turn into a patent. You will always have to file a non-provisional application (either by converting the provisional application or by separately filing a non-provisional application) to get your patent.
In other words, you’ll have to pay for the non-provisional patent at some point, so if you’re not worried about anyone else claiming your invention, you might choose to wait and only file the non-provisional application.
The Takeaway
Long story short, provisional patents are extremely useful in protecting your inventions. They’re much less expensive than a non-provisional patent and give you a way to stake a claim on your inventions as early as possible.
Remember, it doesn’t matter who came up with the invention first. It matters who claimed it first. That’s why investing in a provisional patent is so important.
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