#1 of 5 Common Misconceptions About Provisional Patent Applications
Nope! A provisional patent application is not a patent. Based on inventor questions I see on Reddit and Quora, inventors should have to write this on the whiteboard 100 times before filing a provisional patent application.
Here's the Truth
A provisional patent application is essentially a temporary filing that holds your place in line at the USPTO for 12 months. To get an actual patent, you must file a non-provisional application before that year runs out. The USPTO does NOT examine your provisional application, and it will never result in a patent on its own.
While a provisional application establishes an early filing priority date for your invention and allows you to use “patent pending” on marketing and other informational material, you can’t sue for infringement based solely on a provisional application. You do not have legally enforceable patent rights against infringers until a patent is granted based on a non-provisional application.
Using the term “patent pending” as I described, though, can be a deterrent to infringement. That phrase does make people aware that a subsequent non-provisional application may be filed and published, at which point they may be found to have actual legal notice of potential patent rights. That could leave them liable for infringement retroactive to the publication date if a patent eventually issues from the non-provisional application.
Here's What to Do
Use the provisional application to secure your filing date, and work with a patent professional to do it correctly to maximize the chances of your full non-provisional application being granted as a patent that protects what you want it to protect.
Also, do use the term “patent pending” as I described, as that can be a deterrent to infringement. That phrase does make people aware that a subsequent non-provisional application may be filed and published, at which point they may be found to have actual legal notice of potential patent rights. That could leave them liable for infringement retroactive to the publication date if a patent eventually issues from the non-provisional application.
If you’d like help with a patent, let’s talk. You can use my contact form or book a consultation online at kingpatentlaw.com or by calling my office at 312-596-2222 or 217-714-8558.
Please check out the other posts and pages on my website for more information on patents and other intellectual property and business law issues.
