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Provisional Patent Applications: What You Need To Know, Part 5

Why Should You File A Provisional Patent Application?

  • To get the earliest filing date possible while giving you a year to develop your invention, evaluate the market, and put off costs.

To Establish A Priority Date: You do not need to file a provisional patent application to get the earliest filing date possible. You can get the earliest filing date by filing a provisional patent application, a non-provisional utility patent application, or a PCT application. All three can establish your priority date.

To Improve Your Invention: Provisional patent applications can make it easy for you to improve your concept of your invention when you file a non-provisional patent application (i.e. the “real” patent application). In contrast, a utility patent application and a PCT application do not allow you to easily change or add to the conception of your claimed invention. You are stuck with whatever you filed. Almost all changes would need to be added by filing another utility patent application or a PCT application.

To Evaluate The Market: Basically, the provisional patent application gives entrepreneurs, startups, small businesses, and universities one year of secrecy to develop the invention, evaluate the market for the invention, and pitch the invention to investors.

To Delay Costs: Filing a provisional patent application puts off many fees for a year, which can be important to cost-sensitive startups and small businesses. The USPTO filing fees for a provisional patent application are about 50-75% less than for a non-provisional patent application or a PCT patent application. Also, the USPTO does not examine provisional patent applications for one year, so you are also putting off the cost of responding to USPTO examination requirements.

No Loss Of Patent Term: If all of this wasn’t enough, filing a provisional patent application does not reduce the patent term (duration) of any U.S. utility patent issued from the provisional patent application.

Is There Any Reason To Not File A Provisional Patent Application?

  • Yes, filing a provisional patent application may add an unnecessary cost, because you still have to file a non-provisional patent application or PCT application to get a patent.

For example, most large corporations do not bother filing provisional patent applications, because they have the resources to quickly develop the invention, evaluate the market, and file a non-provisional patent application. Simply put, large corporations don’t need the benefits of filing a provisional patent application. Therefore, if they know they want to patent an invention, then filing a provisional patent application would only add cost.

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