Provisional patent applications provides one (1) year of “Patent Pending” or “Pat Pend” status for an invention. This is particularly important under the current Patent Law making the U.S. a first to file patent filing system.
A provisional patent application is a disclosure document. That is, the words and optional (but recommended) drawings should fully describe the invention in terms that one having ordinary skill in the art can readily understand. When filed at the US PTO, provisional patent applications are assigned a serial number and a filing date and is considered “filed” for purposes of the first-to-file system now in effect in the U.S.
The invention can now be publicly disclosed, sold or offered for sale, or published, without losing any rights to later patent the invention in the United States. In addition, the invention is protected by international treaty in most industrialized countries. That is, any member country of the Paris Convention recognize provisional patent applications as providing a priority filing date for filing in that country, so long as either an international patent application (PCT patent application) is filed, or a national patent application is filed directly in that country, within one (1) year of filing in the United States.
A property right to your invention
Once filed, provisional patent applications are considered a property right. That is, the owner of a provisional patent application can assign or sell the rights to the invention. Or the owner can license the invention.
However, a provisional patent application is never examined by the Patent Office and automatically goes abandoned after one year from the filing date.
Why should you file a provisional patent application if it will go abandoned after one year? There are many reasons that include, but are not limited to:
- if you expect to publicly disclose your invention and want to protect foreign filing rights
- if you have already publicly disclosed your invention and do not want to lose the right to file in the US for having disclosed your invention for more than one year
- if you expect to change or improve your invention during the coming year
- if you have a limited budget for filing a patent application
- if you want to test the market for your invention.
Talk to a patent attorney to learn if filing a provisional patent application is right for you.