What is a provisional?
What is a provisional application? This is a frequently asked question and is often accompanied by “What’s a non-provisional?”, “Why would I file one or the other?”, and “What are they good for?”. In future posts, we’ll take a look at the pros and cons of provisional applications and at those accompanying questions. But first I want to share with you some basic definitions.
First, what is a non-provisional application? It is a full and complete patent application, including a detailed description of the invention, drawings, the claims, listing of inventors, and the filing fees. The claims are the description of the boundaries of your intellectual property. In the same way that you have a description of property boundaries so you know where your rights to exclude trespassers begin and end, claims describe your invention in such a way that the public should (in theory!) understand what it is they would have to use, make, or sell to be trespassing on your rights. But you also want to avoid describing your invention so narrowly that any competitor could easily work around it, all the while making sure your claims will provide commercial value to your company. You can see that stating clearly, concisely, and precisely what constitutes “the invention” is going to be a fairly complex balancing act.
A provisional application is the Patent Office’s attempt to give inventors a low-cost way of starting the application process. They recognize that the non-provisional filing process can be time-consuming and expensive, so they allow you to file a less than complete application – one, for example, that has no claims – for a much lower filing fee. They then give you one year before you have to file the non-provisional. You are essentially saying, “Dear Patent Office, I’ve definitely invented something here, and I’m ready to tell you all about it and how it works – but I’m not quite prepared to specify what exactly I’m considering ‘the invention’”. The provisional application is never examined and can never turn directly into an issued patent. Instead, when you file the related non-provisional application, if you tell the Patent Office it’s related to that provisional and then everyone will pretend you filed that non-provisional a year earlier than you really did. If you decide not to file a non-provisional application, the provisional never becomes publicly available. So, a provisional is an informal patent application that puts a stake in the ground for you but is only the first step towards applying for a patent.
Next time, I’ll discuss some pitfalls to watch out for when drafting your own applications. After that, we’ll go into how to decide whether to file a provisional or a non-provisional.