Patent Pending Through Provisional Patent Applications

Once a patent application is filed with the United States Patent and Trademark Office (“USPTO”), the invention is given the revered status of “Patent Pending.” Inventors receive added market and business credibility for having “Patent Pending,” they receive a priority date as inventor of that invention, and they receive a level of protection equal to the potential the invention disclosed in the pending application has of becoming an issued patent after examination. An invention cannot be enforced until a patent is actually issued by the USPTO. A provisional patent application is a place-holder that can be used to delay the need to file the more expensive utility patent application. The provisional application is never formally examined by a patent examiner and does not itself issue as a patent. Whether or not a pending utility application eventually issues as a patent depends on its ability to survive patent examination.

Many inventors believe that large companies will line up at their door with large piles of money begging the inventors for a piece of their invention. The reality is that very few issued patents ever recoup the money invested to obtain the patent from licensing or selling the patent. Because of this reality, inventors need to have a specific plan ready to obtain a return on value for their investment if licensing or selling the idea doesn’t work. Most companies are much more interested in buying or licensing an idea that has been proven in the market place or that has been developed to a point where the company need only put the marketing dollars behind the idea to make it a success.

To help minimize initial costs while an inventor is developing prototypes, refining the invention and determining if there really is a market for a new idea, many inventors opt to file a provisional patent application rather than a utility patent. Other companies file provisional patent applications because they are still developing their invention further and want to have a level of protection but are not yet ready to prepare a utility patent application. Whatever the motivation, filing a provisional patent application to obtain “Patent Pending” gives the benefits of “Patent Pending” while the inventor decides the best business timing for filing a utility patent application. Because the preparation and filing costs of a provisional application are significantly less than those of a utility application, the business decision is easier. If it turns out that the idea was not patentable or that the idea does not grow as quickly as the inventor hoped, the value from the “Patent Pending” can still be realized.

Although the best and fastest protection comes from directly filing a utility patent application, provisional patent applications can be used well to provide “Patent Pending” in situations where it makes better business sense to do so.