Using Provisional Patent Applications to Protect Your Invention.

Using Provisional Patent Applications to Protect Your Invention

A provisional patent application (PPA) is the United States Patent and Trademark Office (USPTO) version of a YouTube short. Seriously.

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What is a Provisional Patent Application?

A provisional patent application is a cheap way to establish an early filing date with the USPTO (provisionals are available in other countries as well). It gives you a 12-month window to develop your invention further and decide whether to file a formal utility patent application.

Critically, there are almost no rules about what can go into a PPA. As long as your PPA enables a person of ordinary skill in the field to practice your invention (meaning it is enabled), you can claim priority to the PPA in a later utility patent application (or PCT application). This is really important because the major economies globally operate on a first-inventor-to-file system. Imagine that I invent a new drug, patenton, on January 1, 2026, and you invent patenton on December 1, 2026. You would think that inventing 11 months before you would mean I get the patent. Not so. If you file for a patent the day you invent it, Dec. 1, and I file the next day, you’ve filed first and you get the patent. A PPA, if enabled, preserves your priority date as the date you file. Now reimagine the scene. I write the molecular composition of patenton on a cocktail napkin in enough detail that an organic chemist could create it and scan then file that napkin as a PPA on January 10, 2026. As long as I file my utility patent application claiming priority to the PPA prior to one year after filing the PPA, I get the patent even if you file the “real” utility patent application first.

Because there are no real rules about how a PPA must be written (as long as it is enabled), an unfunded startup can easily get a PPA on file without incurring attorney fees and costs. Of course, it is better to use an attorney (and definitely don’t use patent profanity in your PPA). But if it is a financially-driven choice between not filing anything or filing a self-authored PPA, file the self-authored PPA.

What if you aren’t sure if you want to tell the world how to make your invention? Maybe it is something (like the formula for Coca-Cola) that you want to simply hold as a trade secret. You’re worried that it could be reverse-engineered, but you aren’t yet sure. One great feature of a US PPA is that it is only published if a utility patent application claims priority to it and then issues as a patent. If you drop it without ever filing anything further, the PPA remains secret in the USPTO and your trade secret remains safe. Pretty cool, right? You keep both options open for a year.

You can also file multiple PPAs for the same invention. For example, if I come up with a time release formulation of patenton a month after inventing it, I can file a new PPA claiming the time release formulation. You may want to file a PPA after every significant breakthrough during the year between your first PPA and your utility application filing claiming priority to all of the PPAs. Sure, you’ll have different priority dates for each breakthrough, but you improve your chances of being the first inventor to file on each breakthrough.

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A provisional patent application is an easy, fast and cheap way to get a filing date. Like everything in patent law, it isn’t as simple as this discussion makes it seem. If you can afford to get a lawyer, you should. If you can’t afford one, at least you can get on file with a PPA.

As with everything on this site, this isn’t legal advice.