If you’re like most of the visitors who visit Patent Rebel, you might be wondering: what is the difference between a provisional patent and a utility patent. The USPTO offers inventors the option of either filing a provisional patent application or a nonprovisional utility patent application. If you want to learn what the difference is between a utility patent and a provisional patent, read below to find out.
Provisional Patent vs Utility Patent
A provisional patent, correctly known as a provisional patent application, is a patent application that does not require many of the formalities that are required for a regular utility patent application, but it does not turn into a patent, whereas a non-provisional utility patent application turns into a patent grant.
Let’s dive deeper into the differences between a provisional patent application and a utility patent application.
Provisional Patent (What does provisional patent mean?)
A provisional patent application is a toned-down version of a nonprovisional utility patent application. Provisional applications do not require much of the information required for a complete utility patent application.
For example, a provisional patent application does not require formal patent claims, if you’ve ever drafted a utility patent application, this is one of the longest and most time-consuming portions to create because it sets out the scope of an inventor’s patent rights.
Also, provisional patent applications are much cheaper to file than utility patent applications because they require less to be performed by an attorney. As such, many inventors choose to file a provisional patent application to obtain an early filing date.
You might be wondering: why is obtaining an early filing date for an invention important?
Obtaining an early filing date for an invention is important because the United States has adopted a first to file rule, which grants a patent to the inventor who first files a patent application with the patent office.
The first to file rule encourages inventors who have inventions that they want to protect to head over to the patent office to file a patent application.
The importance can be illustrated with the following example.
Let’s say that you invent something first and a subsequent inventor invents the same invention 2 years later but files a patent application before you do. The subsequent inventor will be awarded a patent application and you will not because he filed a patent application before you did.
The fact that you invented the invention first does not matter in this analysis. This is why inventors rush to the patent office to file an application to obtain an early filing date for it.
Many inventors choose to first a provisional patent application because it can be prepared fairly quickly when compared to preparing a complete nonprovisional utility patent application.
The only downside to filing a provisional patent application is that it does not turn into a patent because it’s not examined by the USPTO.
As such, inventors file a provisional patent application for the early filing date and later file a nonprovisional patent application that benefits from the early filing date of the provisional patent application.
Utility Patent (What does utility patent mean?)
So, now we know that a provisional patent application is cheap, quick to prepare, and easy to file, so how does a nonprovisional utility patent application compare?
A nonprovisional utility patent application is a regular, formal patent application that must comply with the hundreds of requirements set forth by the USPTO.
Close attention to details and requirements must be paid to properly prepare, file, and prosecute a utility patent application.
Making even seemingly minor mistakes in a utility patent application could cost an inventor a ton of money and time to repair down the road.
As such, it is imperative that inventors hire an experienced patent attorney to assist them with preparing, filing, and prosecuting a utility patent application.
If you’re an inventor with little to no experience prepare utility patent application, you should hire an experienced patent attorney to assist you with patenting your invention.
Patent Pending Status (What is it? & how do you get it?)
As soon as an inventor files either a provisional patent application or utility patent application, he will be able to advertise his invention. or product as patent pending. He may add the term “patent pending” to the product itself, product packaging, and any instruction manuals for the product.
This is a great advantage when it comes to advertising because consumers often associate patent-pending products with quality and ingenuity. So, if you’ve filed your patent application, you can immediately add this designation without doing anything else.
Turning a Provisional Patent Into a Utility Patent
By now, you should know that filing a provisional patent application does not result in a patent.
To obtain a utility patent and benefit from the early filing date of a provisional patent application, an inventor must file a nonprovisional patent application that claims the benefit of the earlier-filed provisional patent application.
Inventors have 12 months from filing a provisional patent application to file a nonprovisional patent application that claims the benefit of an earlier-filed provisional application to benefit from its earlier filing date.
If an inventor does not file a utility patent application within the 12 month grace period, the early filing date is lost. If the early filing date is lost, the inventor will have to rely on the filing date of the filing of the nonprovisional patent application.
Also, if an inventor files a provisional patent application and then files a nonprovisional utility patent application that adds new matters to the invention and those matters were not described in the provisional application, they are considered to be new matter and the inventor will not be able to benefit from the earlier filing date as it pertains to them.
The resulting patent will be a hybrid patent with some portions of the invention having priority of the earlier filing date and new matter having the filing date of the nonprovisional utility patent application.
As such, although some inventors believe that they do not have to spend the time and money preparing a provisional application, they are mistaken. Poor choices they make when preparing a provisional application will come back to bite them when the time comes to filing a nonprovisional utility patent application.
Should you Get a Utility Patent or Provisional Patent?
Inventors often start off by filing a provisional patent application to quickly obtain an early filing date and then file a nonprovisional utility patent application within the 12 month grace period to continue patenting their invention.
A provisional patent application is great for someone who is still working on his invention, knows how to describe how it works, yet doesn’t want to invest heavily in patenting it right away.
The provisional application gives an inventor an early filing date and some flexibility to continue working on an invention, perfecting further.
Also, having a patent-pending invention makes finding and convincing investors to invest in your invention or product easier because it proves to them that you’ve taken legal measures to protect your work.
Also, having a patent pending on an invention shows inventors that you have rights to your work and that there is something tangible that they can invest their money in.
So, if you have an invention and you still haven’t filed a patent application, what are you waiting for? Hire an attorney and ask them to assist you with patenting your invention and obtaining patent pending status on your invention.
Benefits of a Provisional Patent
As mentioned earlier, the main benefit of filing a provisional patent application is that it gives inventors an early filing date for their invention. This is especially important in situations where many people are seeking to patent the same invention.
The first to file rule in the U.S awards a patent to the first inventor who files a patent application, as such, provisional patents are an important tool for inventors all around the world seeking to patent their inventions in the United States.
Patent Rebel Note: To benefit from a provisional patent, make sure that you take the time to accurately describe the invention you’re seeking to patent. Leaving out critical information about the invention you’re seeking to patent may cost you a patent. So, hire an attorney and have done correctly if you value your invention and believe it will become commercially successful.
The second benefit of obtaining a provisional patent (filing a provisional patent application) is that you’ll be able to market and advertise your invention as patent-pending as soon as you file your provisional patent application with the USPTO.
Now, let’s discuss the benefits of obtaining a utility patent.
Benefits of a Utility Patent
Utility patents have many benefits, so let’s dive right into them!
The biggest benefit of obtaining a utility patent over an invention is that a patent holder is able to control who uses, makes, sells, and imports his patented invention to the United States.
By being to control who uses and sells his patented invention, an inventor may be able to become the only person selling the patented product, thereby cornering the market and creating an advantage for himself over his competitors.
Also, as a patent holder, an inventor enjoys the right to allow others to use his invention in exchange for a fee or agreed upon royalty. This is what is known as licensing. An inventor can license the use or creation of his patented invention to others in exchange for an agreed-upon fee.
Licensing agreements can prove to be very lucrative, especially if the invention you’ve patented is something that others need and there is no other invention that solves the same one your invention solves.
Having said that, patents are also great for inventors because if someone copies or sells the inventor’s invention without his permission, he can bring a lawsuit against that party in Federal District Court for patent infringement.
If the inventor is successful in his lawsuit, he will obtain an injunction, ordering the infringer to stop his infringing use of the inventor’s patented invention or product.
So, as you can see, it might be worth your time to patent your invention, especially if you know that your invention solves a problem that no other invention solves.
However, before proceeding with patenting your invention, you should consult with your own attorney to determine whether patenting your invention is worth your time and whether you should spend your time and money patenting it because the patenting process is costly and time-consuming.
Frequently Asked Questions at Patent Rebel (FAQs)
1) What is the difference between a provisional and a non provisional patent?
The main difference between the two is that a provisional patent is a placeholder in time that gives an inventor some time to file a utility patent. Whereas a non-provisional utility patent is a full-fledged complete patent application that turns into a patent. Whether you choose to file a provisional application or a non provisional patent application, you should consult with your attorney before doing so.
2) What are the three types of patents?
The three types of patents offered by the USPTO are utility patents, design patents, and plant patents. Utility patents are the most applied for patent and they protect how an invention works. Design patents, on the other hand, are the second most applied for patent and they protect the appearance of an invention or how it looks. Plant patents are the least applied for patent and make up less than 1% of all applied for patents and they protect new, asexually reproduced plant species.
3) Does a provisional patent affect the patent term?
Yes, a provisional patent affects the patent term. The patent term without filing a provisional patent lasts for 20 years from the date an applicant files his nonprovisional patent application. However, when an inventor files a provisional patent application and follows up by filing a nonprovisional patent application, the patent term begins at the time of filing the provisional application thereby extending the 20 year patent term to 21 years.
4) Can a patent last forever?
No, a patent can never last forever. Utility patents last for 20 years from the filing date of a nonprovisional patent application. Design patents last for 15 years from the date the patent office grants a design patent application. Once a patent expires, it cannot be renewed. However, you may be able to patent an improvement to your invention and that could extend the amount of time you’re able to benefit from your original invention.
5) Can you patent an expired patent?
No, once a patent expires, it falls into the public domain and cannot be patented again. When a patent falls into the public, anyone is free to use, make, and sell the patented invention without having to obtain the express permission of the patent holder.
6) Does a patent pending protect you?
A patent pending does not protect inventors. An inventor does not have any rights to an invention while a patent application is pending. An inventor gains rights to an invention only after the USPTO grants his patent application. Before that happens an inventor does not have rights to his invention.
Utility Patent vs Provisional Patent
At this point, you should know the difference between a utility patent and a provisional patent. Utility patent applications are full-fledged patent applications that turn into granted patents. However, provisional patent applications never turn into a patent. Instead, to get a patent, an inventor must file a nonprovisional utility patent application that relates back to an earlier-filed provisional patent. If you have any general questions or comments, please feel free to leave them in the comments section below.