Provisional vs. Nonprovisional Patent Application: What Is the Difference?

The dog just won’t leave you alone during dinner. Exasperated, you place the heel of your sandwich into an old plastic jar and let her push it around the floor. Watching her slide it around the kitchen floor—it hits you: your eureka moment!

A good invention is rare. That flash of genius is fleeting, so be ready to protect it when it comes. Lesson one: the difference between provisional patent and nonprovisional patent. Filing a provisional patent application gives inventors flexibility to quickly protect an invention. The provisional patent application is just the beginning, and you will need a nonprovisional patent to protect your flash of genius.

Knowing the difference between a provisional patent application and a nonprovisional patent application will help you learn more about the process of filing a patent, the expected costs of protecting your invention, and how to use both provisional and nonprovisional patent applications to protect your rights in a smart way.

For example, as you watch your dog try to chew the side of the plastic jar you realize that if the jar had holes of just the right size it would be just right: big enough for her to taste the sandwich but small enough to stop her from snatching it. How do you know what size those holes should be? You sit down and sketch out some holes and slits and go to work testing which one works best.

What is a provisional patent?

In the United States, inventors can file provisional patent applications. A provisional patent application will never get a patent issued for your dog toy. It only lasts for one year and gives the inventor an opportunity to conduct more research or finish the invention before filing a nonprovisional patent application. A provisional patent application also costs a lot less to file.

For your dog toy, you can spend that year testing slits and holes of different sizes to figure out which ones work best for which dogs. The provisional patent application form is very loose. Filing a provisional patent has very few formalities. You can sketch out the jar, describe different kinds of jars that would work for your invention, and include as many variations on holes, slits, or any combination of the two.

From the day you file, you will have a year to convert your provisional application. Conversion involves filing a nonprovisional patent application that includes a reference to your provisional patent application. In that way, a good provisional patent definition is a placeholder. It holds a place in line for your future nonprovisional application.

Be careful. If you find a design for a slit or a hole that was not included in your provisional patent application and add it to the nonprovisional application, then you may lose the benefit of the provisional application. The provisional only holds the line for the invention, as you described it in your provisional application. Anything new that goes into your nonprovisional application will have to go to the back of the line.

The result will be a hybrid patent: some parts will be invented on the day of the provisional filing, others on the day of the nonprovisional filing. The provisional patent application needs to anticipate as many different ways of practicing your invention as possible in order to give you the flexibility you need to write a good nonprovisional patent.

What is a nonprovisional patent?

If a provisional patent application is simple, informal, and quick to file, then a nonprovisional patent is the opposite: long, complicated, and difficult to file. The nonprovisional application form is very long. It contains many parts, and the parts have many rules. A good nonprovisional patent definition is a formal dinner: it is long, has many parts, lots of fussy rules, and you will get in trouble if you break just one.

Unlike the formal dinner, the nonprovisional application is worth the hassle. Unlike a provisional patent application, a nonprovisional patent can be issued as an enforceable claim. Your dog toy with the specific pattern of slits and holes is only protected once your nonprovisional patent is issued by the United States Patent and Trademark Office (USPTO). Then, if anyone makes a toy with the same pattern, they are infringing your patent.

Which one should you file?

File both. For example, you have a good idea of the range of possible hole and slit patterns that will work for your dog toy. If you include them all in the provisional application, then you have a year to test as many as possible. You can start to make drawings for your nonprovisional application based on the patterns that keep the dog occupied.

You can also use that time to find a partner to produce your toy. You can show the toy around at the dog park and see if other dogs like the same patterns. You can email it to the business development office at pet toy manufacturers. You have a year to work on your patent, finding out:

• Does your invention work? 
• Does anyone want to make the products it protects? 
• Is it worth the expense and hassle of a nonprovisional patent application.?

Provisional and nonprovisional patents are very different tools. When used together, they are a great way to make the most of your invention and get the most valuable patent possible.