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IP guideA provisional application establishes a priority date cheaply. A utility (non-provisional) application starts examination. Most inventors file provisional first, then non-provisional within 12 months.
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IP guide
Provisional Vs Utility Patent · File.Business

Provisional vs utility patent. Priority date vs full examination.

A provisional patent application establishes a priority date inexpensively without starting examination. A non-provisional (utility) application is the "real" application that gets examined and can result in a granted patent. Most inventors file provisional first to lock in the priority date, then file the non-provisional within 12 months when ready for full examination costs.

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Key facts

Start here.

Key fact
Provisional priority

Provisional locks in a priority date. Cheaper, faster to file. No claims required.

Key fact
12-month window

Provisional must be followed by non-provisional within 12 months or priority is lost.

Key fact
Non-provisional examination

Starts the examination process. Includes claims, specification, drawings.

Key fact
"Patent Pending"

You can mark your product "Patent Pending" once any application is filed.

Key fact
Cost

Provisional: $1,500-$4,000. Non-provisional: $10,000-$30,000+ over examination.

In depth

The full picture.

01

What a provisional does

Establishes a priority date for the invention. Allows "Patent Pending" marking. Provides 12 months to file a non-provisional. Does not get examined; does not become a patent on its own.

02

What a provisional does not do

Does not get examined. Does not result in a granted patent. Does not protect the invention from copying (until a patent grants).

03

Requirements for provisional

Specification describing the invention, drawings if relevant, signed cover sheet, filing fee. Claims not required (though they are often included anyway).

04

Strategic reasons to file provisional first

(1) Locks in priority date before product launch or public disclosure. (2) Cheaper initial filing. (3) Buys 12 months to refine the invention and decide on full filing. (4) "Patent Pending" status for marketing. (5) Provides time to assess commercial viability before incurring non-provisional costs.

05

Non-provisional requirements

Detailed specification, drawings, claims (the legal scope of protection), oath or declaration of inventor, filing fee. Substantially more involved than provisional.

06

Examination process

Non-provisional gets assigned to examiner. First office action (often rejection citing prior art). Inventor responds with amendments. Iterations continue until grant or final rejection. 18-30 months typical.

07

Priority date

Provisional filing date becomes the priority date for the non-provisional, as long as the non-provisional claims priority and the same invention is disclosed in both. Critical for novelty: prior art before the priority date is the "prior art universe" for examination.

08

Common mistakes

(1) Skipping provisional and missing priority date. (2) Filing non-provisional without lawyer (claims errors are costly). (3) Public disclosure before any application (loses foreign priority in most countries; US has 12-month grace period). (4) Letting the 12-month window lapse without filing non-provisional.

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FAQ

Common questions.

Why file provisional first?
Locks in priority date cheaply. Buys 12 months to refine and assess.
Can I skip the provisional?
Yes. Just file non-provisional directly. Provisional adds optionality.
What if I miss the 12-month deadline?
Priority date is lost. You can file a new application but with a later priority date.
Can the non-provisional differ from provisional?
Should disclose the same invention. New material in non-provisional may not get the provisional priority date.
When can I mark "Patent Pending"?
Once any application (provisional or non-provisional) is filed.
Does provisional give me protection?
Establishes priority, but no protection until patent grants. Cannot enforce.
Cost?
Provisional: $1,500-$4,000 (mostly attorney fees + small USPTO fee). Non-provisional: $10,000-$30,000+ total over examination.
Should I use a patent attorney?
For non-provisional: strongly recommended. For provisional: also recommended, though some inventors file pro se.

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This guide is educational. Specific IP decisions require professional legal advice.

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