| Provisional Application |
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Since June 8, 1995, the United States Patent and Trademark Office (USPTO) has offered
inventors the option of filing a provisional application for patent which was designed to
provide a lower-cost first patent filing in the United States. Applicants are entitled to claim
the benefit of a provisional application in a corresponding non-provisional application filed
not later than 12 months after the provisional application filing date. Under the provisions of
35 U.S.C. § 119(e) , the corresponding non-provisional application would benefit in three
ways: (1) patentability would be evaluated as though filed on the earlier provisional
application filing date, (2) the resulting publication or patent would be treated as a reference
under 35 U.S.C. § 102(e) as of the earlier provisional application filing date, and (3) the
twenty-year patent term would be measured from the later non-provisional application filing
date. Thus, domestic applicants are placed on equal footing with foreign applicants with
respect to the patent term. Inventors may file U.S. provisional applications regardless of
citizenship. Note that provisional applications cannot claim the benefit of a previously filed
application, either foreign or domestic. Note also that 35 U.S.C. § 112 must be complied
with as discussed in the paragraph below in order to receive the benefit under 35 U.S.C. §
119(e) .
The later-filed non-provisional application claiming the benefit of the provisional application
must include at least one claim particularly pointing out and distinctly claiming the subject
matter, which the applicant regards as the invention. See 35 U.S.C. § 112 , 2nd paragraph.
Although a claim is not required in a provisional application, the written description and any
drawing(s) of the provisional application must adequately support the subject matter
claimed in the later-filed non-provisional application in order for the later-filed
non-provisional application to benefit from the provisional application filing date. Therefore,
care should be taken to ensure that the disclosure filed as the provisional application
adequately provides a written description of the full scope of the subject matter regarded as
the invention and desired to be claimed in the later filed non-provisional application. There
is no requirement that the written description and any drawings filed in a provisional
application and a later-filed non-provisional application be identical, however, the later-filed
non-provisional application is only entitled to the benefit of the common subject matter
disclosed in the corresponding non-provisional application filed not later than 12 months
after the provisional application filing date. Additionally the specification shall disclose the
manner and process of making and using the invention, in such full, clear, concise and exact
terms as to enable any person skilled in the art to which the invention pertains to make and
use the invention and set forth the best mode contemplated for carrying out the invention.
See 35 U.S.C. § 112 , 1st paragraph.
A provisional application for patent is a U. S. national application for patent filed in the
USPTO under 35 U.S.C. § 111(b) . It allows filing without a formal patent claim, oath or
declaration, or any information disclosure (prior art) statement. It provides the means to
establish an early effective filing date in a later-filed non-provisional patent application filed
under 35 U.S.C. § 111(a) . It also allows the term "Patent Pending" to be applied in
connection with the description of the invention.
A provisional application for patent (provisional application) has a pendency lasting 12
months from the date the provisional application is filed. The 12-month pendency period
cannot be extended. Therefore, an applicant who files a provisional application must file a
corresponding non-provisional application for patent (non-provisional application) during the
12-month pendency period of the provisional application in order to benefit from the earlier
filing of the provisional application. In accordance with 35 U.S.C. § 119(e) , the
corresponding non-provisional application must contain or be amended to contain a
specific reference to the provisional application within the time period and in the manner
required by 37 CFR 1.78.
Once a provisional application is filed, an alternative to filing a corresponding
non-provisional application is to convert the provisional application to a non-provisional
application by filing a grantable petition under 37 CFR § 1.53(c)(3) requesting such a
conversion within 12 months of the provisional application filing date.
However, converting a provisional application to a non-provisional application (versus filing
a non-provisional application claiming the benefit of the provisional application) will have a
negative impact on patent term. The term of a patent issuing from a non-provisional
application resulting from the conversion of a provisional application will be measured from
the original filing date of the provisional application.
By filing a provisional application first, and then filing a corresponding non-provisional
application that references the provisional application within the 12-month provisional
application pendency period, a patent term endpoint may be extended by as much as 12
months.
Provisional Application for Patent Filing Date Requirements
The provisional application must be made in the name(s) of all of the inventor(s). It can be
filed up to 12 months following the date of 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.)
A filing date will be accorded to a provisional application only when it contains:
* a written description of the invention, complying with all requirements of 35 U.S.C. §112 1
st paragraph and
* any drawings necessary to understand the invention, complying with 35 U.S.C. §113 .
If either of these items are missing or incomplete, no filing date will be accorded to the
provisional application.
To be complete, a provisional application must also include the filing fee and a cover sheet
identifying:
* the application as a provisional application for patent;
* the name(s) of all inventors;
* inventor residence(s);
* title of the invention;
* name and registration number of attorney or agent and docket number (if applicable);
* correspondence address; and
* any US Government agency that has a property interest in the application.
.
Filing Fee
Fees are subject to change. Payment by check or money order must be made payable to
"Director of the U.S. Patent and Trademark Office".
Mail the provisional application and filing fee to:
Commissioner for Patents
P. O. Box 1450
Alexandria, VA 22313-1450
SOURCE: US Patent Office Website 2010
Filing a patent is a very complicated process. For the first time, I suggest to file it with a
patent agent or a law firm.
inventors the option of filing a provisional application for patent which was designed to
provide a lower-cost first patent filing in the United States. Applicants are entitled to claim
the benefit of a provisional application in a corresponding non-provisional application filed
not later than 12 months after the provisional application filing date. Under the provisions of
35 U.S.C. § 119(e) , the corresponding non-provisional application would benefit in three
ways: (1) patentability would be evaluated as though filed on the earlier provisional
application filing date, (2) the resulting publication or patent would be treated as a reference
under 35 U.S.C. § 102(e) as of the earlier provisional application filing date, and (3) the
twenty-year patent term would be measured from the later non-provisional application filing
date. Thus, domestic applicants are placed on equal footing with foreign applicants with
respect to the patent term. Inventors may file U.S. provisional applications regardless of
citizenship. Note that provisional applications cannot claim the benefit of a previously filed
application, either foreign or domestic. Note also that 35 U.S.C. § 112 must be complied
with as discussed in the paragraph below in order to receive the benefit under 35 U.S.C. §
119(e) .
The later-filed non-provisional application claiming the benefit of the provisional application
must include at least one claim particularly pointing out and distinctly claiming the subject
matter, which the applicant regards as the invention. See 35 U.S.C. § 112 , 2nd paragraph.
Although a claim is not required in a provisional application, the written description and any
drawing(s) of the provisional application must adequately support the subject matter
claimed in the later-filed non-provisional application in order for the later-filed
non-provisional application to benefit from the provisional application filing date. Therefore,
care should be taken to ensure that the disclosure filed as the provisional application
adequately provides a written description of the full scope of the subject matter regarded as
the invention and desired to be claimed in the later filed non-provisional application. There
is no requirement that the written description and any drawings filed in a provisional
application and a later-filed non-provisional application be identical, however, the later-filed
non-provisional application is only entitled to the benefit of the common subject matter
disclosed in the corresponding non-provisional application filed not later than 12 months
after the provisional application filing date. Additionally the specification shall disclose the
manner and process of making and using the invention, in such full, clear, concise and exact
terms as to enable any person skilled in the art to which the invention pertains to make and
use the invention and set forth the best mode contemplated for carrying out the invention.
See 35 U.S.C. § 112 , 1st paragraph.
A provisional application for patent is a U. S. national application for patent filed in the
USPTO under 35 U.S.C. § 111(b) . It allows filing without a formal patent claim, oath or
declaration, or any information disclosure (prior art) statement. It provides the means to
establish an early effective filing date in a later-filed non-provisional patent application filed
under 35 U.S.C. § 111(a) . It also allows the term "Patent Pending" to be applied in
connection with the description of the invention.
A provisional application for patent (provisional application) has a pendency lasting 12
months from the date the provisional application is filed. The 12-month pendency period
cannot be extended. Therefore, an applicant who files a provisional application must file a
corresponding non-provisional application for patent (non-provisional application) during the
12-month pendency period of the provisional application in order to benefit from the earlier
filing of the provisional application. In accordance with 35 U.S.C. § 119(e) , the
corresponding non-provisional application must contain or be amended to contain a
specific reference to the provisional application within the time period and in the manner
required by 37 CFR 1.78.
Once a provisional application is filed, an alternative to filing a corresponding
non-provisional application is to convert the provisional application to a non-provisional
application by filing a grantable petition under 37 CFR § 1.53(c)(3) requesting such a
conversion within 12 months of the provisional application filing date.
However, converting a provisional application to a non-provisional application (versus filing
a non-provisional application claiming the benefit of the provisional application) will have a
negative impact on patent term. The term of a patent issuing from a non-provisional
application resulting from the conversion of a provisional application will be measured from
the original filing date of the provisional application.
By filing a provisional application first, and then filing a corresponding non-provisional
application that references the provisional application within the 12-month provisional
application pendency period, a patent term endpoint may be extended by as much as 12
months.
Provisional Application for Patent Filing Date Requirements
The provisional application must be made in the name(s) of all of the inventor(s). It can be
filed up to 12 months following the date of 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.)
A filing date will be accorded to a provisional application only when it contains:
* a written description of the invention, complying with all requirements of 35 U.S.C. §112 1
st paragraph and
* any drawings necessary to understand the invention, complying with 35 U.S.C. §113 .
If either of these items are missing or incomplete, no filing date will be accorded to the
provisional application.
To be complete, a provisional application must also include the filing fee and a cover sheet
identifying:
* the application as a provisional application for patent;
* the name(s) of all inventors;
* inventor residence(s);
* title of the invention;
* name and registration number of attorney or agent and docket number (if applicable);
* correspondence address; and
* any US Government agency that has a property interest in the application.
.
Filing Fee
Fees are subject to change. Payment by check or money order must be made payable to
"Director of the U.S. Patent and Trademark Office".
Mail the provisional application and filing fee to:
Commissioner for Patents
P. O. Box 1450
Alexandria, VA 22313-1450
SOURCE: US Patent Office Website 2010
Filing a patent is a very complicated process. For the first time, I suggest to file it with a
patent agent or a law firm.