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What’s the Difference between a Provisional Patent and a Non-Provisional Patent Application?

A patent grants an inventor rights to exclude others from making, using, or selling the idea claimed in the patent for a period of 20 years. A non-provisional patent application begins the examination process to determine if an idea is eligible for patent grant. This examination process (known as “Patent Prosecution”) can be long, highly technical, and expensive.

A Provisional Patent legally establishes the date from which an inventor claims priority to any potential patent rights for his or her idea. Though it begins the “Patent Pending” process, it does not begin the examination process, nor does it grant the inventor a right to exclude others from making, using, or selling his or her idea. Rather, a Provisional Patent is a quick and inexpensive means for an inventor to claim patent priority to his invention. This is important since the first inventor to file his idea with the USPTO wins the priority to the patent rights for the idea! Moreover, it provides an inventor with time to decide whether or not he would like to pursue the more resource intensive endeavor of Patent Prosecution for formal Patent grant.

When the inventor decides to begin the Patent Prosecution process, he must convert his provisional application for patent to a non-provisional patent application. The USPTO treats the filing date of the inventor’s provisional application or patent as his priority date for the examination process of the subsequent non-provisional patent application. A provisional patent application is the only legally recognized means by which an inventor can establish a priority date that is earlier than the filing date of his or her non-provisional patent application.

During the Patent Examination process of a non-provisional application, your patent attorney advocates your patent rights to the USPTO and persuades the Examiner, under a strenuous proceeding that has 1000 pages of rules (not exaggerating!), to grant you a patent on the application. The Examiner then decides whether or not to grant you a patent. If they Examiner declines, then your patent application goes ‘abandoned’. If the Examiner believes your invention is novel and non-obvious (inventive), then you’re granted a patent. There are appeal procedures in place to contest the Examiner’s patentability opinion.

If you are interested in more detail related to your situation it is best to speak with an attorney.

Yuri Eliezer heads the intellectual property practice group at Founders Legal. As an entrepreneur who saw the importance of early-stage patent protection, Yuri founded SmartUp®. Clients he has served include Microsoft, Cisco, Cox, AT&T, General Electric, the Georgia Institute of Technology, and Coca-Cola.

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