Filing For a Provisional Patent Application

How to file a provisional patent application.

Man Signing Form
Don Klumpp/ The Image Bank/ Getty Images

Introduction: Understanding Provisional Patent Applications

Parts of the provisional application will need to be written by you or by a professional and you will need to accompany the application with a "provisional cover sheet" and a "fee transmittal form", which are USPTO provided. You should consider hiring professional help to assist you preparing your application and in deciding what type of patent protection is best for you, however, getting educated in the entire process will benefit you.

Since a provisional utility patent application is often connected to your later filing a nonprovisional utility patent application, you should educate yourself in How To File For A Utility Patent. While the nonprovisional patent is simpler to file for, it is useful to understand what the full deal is.

Time Limit

A provisional patent application can be filed up to one year following the date of the first sale, offer for sale, public use, or publication of the invention. These pre-filing disclosures, although protected in the United States, may preclude patenting in foreign countries.

Unlike a nonprovisional patent, the provisional patent is filed without any formal patent claims, oath or declaration, or any information disclosure or prior art statement.What must be provided for in an application for a provisional patent is the written description of the invention (1) and any drawings (2) necessary to understand the invention.

If either of these two items is missing or incomplete, your application will be rejected and no filing date will be given for your provisional application.

Writing Your Description

Under patent law "the written description of the invention and of the manner and process of making and using the same invention must be in such full, clear, concise, and exact terms as to enable any person skilled in the art or science to which the invention pertains to make and use the invention."

"Skilled in the art or science" is a somewhat subjective legal standard. If the description of your invention is so secretive that it would take a person of extraordinary skill to reproduce or practice the invention, that would not be considered clear or concise. At the same time, the description does not have to be so step-by-step that a layman could reproduce the invention.

It will be helpful to read Tips on Writing the Description which was written for non-provisional patents, however, remember you will not have to write any claims or disclose any prior art. When typing your papers always use the USPTO paper format.

Creating The Drawings

Drawings are the same for provisional patents as they are for non-provisional patents. Use the following tutorial, tip, and reference material when creating your drawing:

Cover Sheet

To be complete, a provisional application must also include the filing fee and the USPTO provided cover sheet. The cover sheet will reveal the following.

  • the application as a provisional application for patent;
  • the name(s) of all inventors
  • inventor residence(s)
  • the title of the invention
  • name and registration number of attorney or agent and docket number (if applicable)
  • correspondence address
  • any US Government agency that has a property interest in the application.

USPTO Form PTO/SB/16 can be used as the provisional cover sheet for your application.

Filing Fee

Fees are subject to change. A small entity receives a discount, a small entity filing a provisional application today would pay $100. The current fee for a provisional application for patent can be found on the fee page. Payment by check or money order must be made payable to "Director of the U.S. Patent and Trademark Office". Use the USPTO provided fee transmittal form.

Mail the provisional application and filing fee to:

Commissioner for Patents
P. O. Box 1450
Alexandria, VA 22313-1450

OR - What you can file for electronically is always being updated check with the USPTO for the latest updates. EFS - File A Patent Application Electronically

  • Provisional applications are not examined on their merits.
  • The benefits of the provisional application cannot be claimed if the one-year deadline for filing a non-provisional application has expired.
  • Provisional applications cannot claim the benefit of a previously-filed application, either foreign or domestic.
  • It is recommended that the disclosure of the invention in the provisional application be as complete as possible. In order to obtain the benefit of the filing date of a provisional application the claimed subject matter in the later filed non-provisional application must have support in the provisional application.
  • If there are multiple inventors, each inventor must be named in the application.
  • The inventor(s) named in the provisional application must have made a contribution to the invention as described. If multiple inventors are named, each inventor named must have made a contribution individually or jointly to the subject matter disclosed in the application.
  • The non-provisional application must have one inventor in common with the inventor(s) named in the provisional application to claim benefit of the provisional application filing date.
  • A provisional application must be entitled to a filing date and include the basic filing fee in order for a non-provisional application to claim benefit of that provisional application.
  • There is a surcharge for filing the basic filing fee or the cover sheet on a date later than filing the provisional application.
  • Provisional applications for patent may not be filed for design inventions.
  • Amendments are not permitted in provisional applications after filing, other than those to make the provisional application comply with applicable regulations.
  • No information disclosure statement may be filed in a provisional application.
  • A provisional application cannot result in a U. S. patent unless one of the following two events occur within 12 months of the provisional application filing date:
    1. a corresponding non-provisional application for patent entitled to a filing date is filed that claims the benefit of the earlier filed provisional application or
    2. a grantable petition under patent rule 37 CFR 1.53(c)(3) to convert the provisional application into a non-provisional application is filed.