It is a type of patent application filed in the US Patent and Trademark Office (USPTO) that is sometimes incorrectly called the “Provisional Patent Application” or PPA. Just like conventional utility patent applications, provisional applications will receive a filing date. However, unlike conventional utility patent applications:
- It will not be searched or examined
- It will never become a patent
- It is automatically abandoned in one year
- It cannot claim priority or benefit from any other application and
- It does not start a 20 year patent term running.
Things to include
A Provisional Application does not require any formal requirements. All you need are a specification and drawings, no particular format is required. It is not necessary to include claims, although some recent information from other countries suggests it is best to include one general claim to avoid a later problem if another country deems that an application with no claims is incomplete.
In spite of this, you shouldn’t assume that because there are no formal requirements you can just file whatever you want and get an early filing date for your conventional application. You need to describe your invention in enough detail in your Provisional Application so that a “person with ordinary skill in the art” can build (practice) the invention from your application (based on the claims in the utility patent that you will file later). It is important to include all information you know about the invention in the Provisional Application since you don’t know what the claims will be. Include clear drawings showing every feature of the invention. Describe the best way of building or practicing the invention, and as many alternatives as you can think of.
That is why we recommend that you have a patent attorney prepare and file the provisional application from the most complete disclosure you can provide. However, you may wish to write your own disclosure to be used as a provisional application. If you do, we recommend that you still have a professional patent attorney or agent review and file the provisional application to ensure that you have not said anything which might limit your later utility patent, and see that the application is properly filed. The professional should put the provisional filing date in a tickler file, and remind you as the deadline for formal filing approaches.
The only forms you’ll need if you’re filing on paper are a Provisional Cover Sheet and a Fee Transmittal form. You can download these forms in PDF format from the USPTO web site. You should include a self-addressed return postcard listing the items you’re filing (which the PTO will stamp and return to you), and you should file by USPS Express Mail, return receipt requested.
Your provisional application can also be filed electronically using the USPTO’s EFS-Web system. You will need to file the application in PDF format, along with an EFS version of the Application Data Sheet (use the ADS form instead of the Provisyour invention should be described in such a way that a “person having ordinary skill in the art” could build (practice) it from the provisional application (as defined by the claims in the utility patent that you will file later based on the provisional). You should include everything you know about the invention in your Provisional Application since you do not know what the claims will be.
The electronic filing system has certain very specific requirements as to how the files need to be created and what files you need to upload (and how they are uploaded). Also, there areIt is essential that your Provisional Application be “enabling” – that is, the invention must be described sufficiently in detail that a “person having ordinary skill in the art” can build (practice) the invention (as defined by the claims in the utility patent which you will file later). The Provisional Application should contain everything you know about the invention since you don’t know what the claims will be.