When most people talk about patents, they are talking about utility patents. These patents protect an invention's function or process and provide rights that can be enforced against infringers. A utility patent is the result of a successful nonprovisional patent application that can take a couple years to acquire; it lasts for about 20 years.
A provisional patent application, on the other hand, while similar to a nonprovisional patent application, has some key differences.
Differences Between Nonprovisional and Provisional Patents
Utility patent filings have many formal parts. They can include figures, figure descriptions, claims, a summary and lots of other details that must be written in a specific way. Writing a utility patent application requires legal skill and a technical background. Filing the nonprovisional patent application is an entire project unto itself and requires a detailed understanding of the filing rules.
Provisional patent applications require far less. In fact, the patent examiner never even looks at the provisional patent application. You don't have to include any particular parts in any particular order. Your provisional patent application doesn't have to feature beautiful drawings or an immaculate set of claims. Plus, the provisional application's filing fee is significantly lower.
In addition to being informal, provisional patent applications do not last for very long; your filing date is only good for one year. Prior to the end of that year — during which you can use the phrase "patent pending" in relation to your invention — you will want to file a nonprovisional utility patent application that claims the priority date of your provisional patent application. Once that year is over, your provisional patent application is gone and you can no longer use its priority date for a corresponding nonprovisional application.
Similarities Between Nonprovisional and Provisional Patents
Before you fill out a cover sheet and submit a photocopy of your coffee-ringed napkin drawing as your provisional patent application, you first should understand how provisional patent applications and nonprovisional patent applications are similar.
Every patent application, even a provisional patent application, is a complex legal document that must be taken seriously. For this reason, it's often advisable to work with an attorney or professional with expertise in patent filings to help ensure you have the best chance of getting your patent issued. Some online companies provide a professional review of your provisional patent application as part of their service.
There are legal requirements that provisional and nonprovisional utility applications share. A poorly drafted provisional application can actually harm your ability to claim or assert your patent rights.
For example, United States patent law requires that every patent application contain a written description of the invention. That description must contain enough information so that someone skilled in the art could make your device, repeat your process or assemble your system.
The courts also look at the legal requirement of providing a written description as proof that you actually are in possession of the invention that you are trying to patent. If you file a provisional patent application that fails to meet that standard, then it may be considered proof that you are not in possession of your invention.
Writing a Provisional Patent Application
Provisional patent applications are governed by the same laws as nonprovisional utility patent applications and have to pass the same legal tests regarding the scope and applicability of their content.
Before you click submit or seal the envelope, look through your application with a critical eye:
- Could your peers really repeat your invention only using the application that you submitted?
- Could you stand up in court and, under oath, claim that the four corners of your application prove that you were in possession of the invention?
To improve your confidence, consider the following strategies when writing your provisional patent application:
- Patent Searching
Spend time searching the technical and patent literature. Tools such as Google Patents and Google Scholar give anyone in the world access to previously issued patents. Knowing what is novel about your invention — and what isn't — is the first step toward filling in a complete written description of the novel part. Professional patent search services are also available online.
- Variations on a Theme
If you 3D-printed your prototype, then you should find out other ways to make it. Could you injection-mold it? Could you 3D-mill it? Could you forge it out of metal? If you find one way to make your invention work, then hit the books or search online to find as many alternatives as possible. Explain whether or not there are any changes you would need to make to accommodate the variation.
- Citing External References
Does your new network architecture work with all varieties of data formatting? Instead of spending hours listing all the different kinds of data formatting, you can simply cite a technical manual or academic paper that discusses data formatting. You do not have to list every conceivable data format — just enough so that one skilled in the art could make your invention work.
- A Thousand Words
There is no formal requirement that provisional patent applications must include drawings, but doing so almost always helps. If you don't have the ability to create drawings, then take some photographs of your invention and include them in your application. Alternatively, you can find professional patent drawing services online.
A provisional patent application differs in many ways from a nonprovisional utility patent application: A provisional patent application has fewer requirements, is temporary in nature (to give you one year to file a nonprovisional application) and is much simpler to file. However, even though it is less formal, it's important to take your provisional patent application seriously.
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