What is a Provisional Patent Application?
A patent application is a written legal document which outlines what an invention is, how it works and what aspects of the invention are being protected. Patent applications usually include drawings and a series of numbered paragraphs called "claims" wherein the ownership of the invention is set out. The claims portion of the patent application often requires a significant amount of time to prepare. Preparing a filing a patent application can be complicated and take a fair bit of time (generally several days to a few weeks).
A provisional patent application is essentially a simplified patent application which outlines basic information about what the invention is and how it works. The drawings can be informal hand sketches and their do not have to be a series of claims. In some cases, the invention is in a very preliminary state, and photographs can be used in place of drawings. As a result, the cost of preparing and filing a provisional patent application is less than filing a full patent application.
Is a provisional patent application a "real" patent application?
YES IT IS! While generally shorter and less involved, the provisional application is a patent application and as such, filing one preserves your patent rights as of the date the application is filed. The provisional application will need to be "replaced" by a non-provisional (often called full patent application) within 12 months of it being filed, otherwise your patent rights will be lost. If filed within this 12 month time period, the non-provisional application will claim priority from the provisional application as is, in a sense, "back dated" to the date of the filing of the provisional patent application.
What happens if you don't file a non-provisional application within 12 months?
Nothing happens, but you lose your provisional filing date. Since the provisional application remains secret even after the end of the 12 month period, you can still file a non-provisional application after the 12 month period is over; however, that non-provisional application cannot benefit from the earlier provisional filing date.
What advantages are there to filing a provisional patent application?
Really, there are only two real advantages to filing a provisional application - they are quicker and often less expensive to file.
Are there disadvantages to filing a provisional patent application?
Perhaps - it does make the process take longer because you are filing the non-provisional application later as opposed to sooner. Also, it may slightly increase the overall cost of the process because you are going through the step of filing the provisional application instead of proceeding directly with a non-provisional application.
What is in a provisional application?
The provisional application must contain a written description of what the invention is and how it works. In particular, the new and inventive features of the invention must be detailed and disclosed. Drawings can be used to help illustrate what the invention is, how it works, and if necessary, how it is constructed/made. The written discussion can also include a list of benefits and advantages associated with the invention as well as a discussion of the problems the invention seeks to solve.
Where is the provisional application filed?
Currently, only the United States patent office offers provisional patent application filing. However, the US provisional application can be used as a priority application for filing applications in other countries (within the 12 month grace period).
Can you sue someone for patent infringement with just the provisional application filed?
No you can't. You can only commence a patent infringement action upon receiving a granted patent. This requires filing a non-provisional application.