How to File a Provisional Patent Application

Learn how to file a provisional patent application: what it is, who files one, how it secures a priority date, and example scenarios for inventors and startups.

Thinking about protecting an invention with a patent? A provisional patent application is usually the first step. It establishes an early filing date and lets you say "patent pending" while you keep developing your idea. This guide covers what a provisional application is, who uses one, what filing involves, and a couple of scenarios that show how it plays out.

What is a provisional patent application?

A patent is a legal right granted by the government that gives an inventor the exclusive right to make, use, and sell an invention for a limited time. A provisional patent application is a lower-cost, simpler filing with the U.S. Patent and Trademark Office (USPTO) that secures a priority date for your invention.

It does not become a granted patent on its own. Instead, it gives you 12 months to file a full non-provisional application that claims the earlier provisional's filing date. A provisional application does not require formal patent claims or a prior-art statement, which is why it is faster and cheaper to prepare.

Who files a provisional application?

Anyone who has created a new product, device, or process can file. The typical filers are independent inventors, startups, and small businesses that want to lock in a filing date before they pitch investors, test the market, or finish engineering the final version.

Federal, not state

Patents are governed by federal law and handled entirely by the USPTO, so the process is the same in every state. There are no state-by-state patent variations to worry about. What can vary is the patent attorney or agent you work with, and consulting a registered practitioner is worth it before you file, since a weak provisional can fail to support your later claims.

Example Scenarios

Scenario 1: Independent Inventor

John, an independent inventor, has developed a groundbreaking software application. He decides to file a provisional patent application to protect his invention while he explores potential investors and markets.

Scenario 2: Startup Company

ABC Tech, a startup company, has invented a new medical device. To secure their invention and attract investors, they file a provisional patent application to establish a priority date for their invention.

In both cases, the provisional application establishes a priority date and buys the inventors a year to refine the idea, gauge demand, and line up funding before committing to the cost of a full non-provisional filing.

Before you file, write up your invention in enough detail that someone skilled in the field could build it, since that description is what your priority date actually protects. If the later non-provisional adds material the provisional didn't describe, the new material won't get the earlier date.

For help with the agreements that surround a new invention, such as NDAs for investors or contractor IP assignments, visit Contractable to draft them with an AI-powered contract generator.