how to patent an ideaHow to Patent an Idea – Choose between a Provisional Patent and a Non Provisional Patent Application

 

How to Patent an Idea – What is a Provisional Patent?

Provisional patent applications are US patent applications for a patent, meaning patent pending, which does not mature into an issued US patent (not examined by the USPTO) unless further steps are taken by the applicant within twelve (12) months of filing the provisional application. Such applications are designed to provide lower cost first patent filing by reducing the formal requirements, such as, not requiring formal drawings, claims, oath and declarations, or an information disclosure statement. However, if drafted properly (adequate technical written description and figures) the provisional application provides the inventor with an application priority date and “patent pending” status. Note a provisional application must be converted to a non-provisional application within one year of the filing date to maintain priority based on the provisional filing.  Failure to file the non-provisional could result in loss of US patent rights, including a complete bar to obtaining a patent. Provisional patent applications are NOT examined by an Examiner at the USPTO.

How to Patent an Idea – What is a Non Provisional Patent Application

A non-provisional patent application, sometimes called a “regular” patent application or just a “patent application”, is a “real” application for a patent. It will be examined, and ultimately, through the examination process can mature into a patent. It’s “term” or life ends twenty years from the earliest priority date, which may be the date it is filed or the date that an application from which it takes priority benefit is filed. (See above for the effect of a provisional priority date.) A complete non-provisional patent application contains at least a specification, all the drawing figures and at least one claim. Claims are the invention. The specification and drawings must disclose what is in the claims, but they do not comprise the invention, only the claims do. Twenty claims are paid for with the filing fee, of which three may be independent claims. (Independent claims stand alone. The remaining are dependent claims which refer to another claim and thus cannot stand alone.) There are various types of non-provisional patent applications, including the “parent” application and such “children” as divisional patent applications (occasionally the USPTO examiner requires restriction between more than one invention in the patent application; after proceeding with one selected invention, the other or others can be filed as divisionals), continuation patent applications (typically only a new set of claims to the original invention) and continuation-in-part patent applications (the original patent application plus some new matter (written description & drawings) added — this is the only way to add new matter to a patent application).

How to Patent an Idea – Which Costs Less

Many people think that a provisional patent application is less costly way to get a patent than a non-provisional patent application. However, this is not the case. Again, because the provisional expires and a non-provisional must be filed to take priority to the provisional, this two-step process is more expensive. It is true that a provisional patent application is the least expensive way to get “Patent Pending” status, but that will expire after a year unless the non-provisional is filed within that time. Further, in order to be fully enabling and not just a waste of time and money, the provisional must contain everything that a non-provisional would include except the claims. That constitutes about ninety percent of the cost of a patent. Later, the non-provisional that is filed taking priority to the provisional will cost about 2-3x times more. Thus, the provisional route is the more expensive route to obtaining a patent. Notwithstanding, as noted below, there are sometimes good reasons to file a provisional patent application and incur the additional costs.

1- when product is still in development or prototyping and you want to be patent pending

2- when you need to disclose the invention and you want to be patent pending before the disclosure

When to use a non-provisional

Pretty much any other reason than those two above will be a good reason for filing a non-provisional. Namely, if you want to get a patent you should immediately file a non-provisional patent application and get the process going.

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