What are the benefits and limitations of filing a provisional patent application?
This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.
Filing a provisional patent application offers several benefits but also has limitations:
Benefits:
- Establishes an early filing date quickly and inexpensively
- Allows use of ‘Patent Pending’ for up to 12 months
- Provides time to assess commercial potential before filing a nonprovisional application
- Does not require claims or an oath/declaration
Limitations:
- Limited 12-month pendency
- Cannot directly mature into a patent
- Not examined for patentability
- Cannot claim priority to any earlier applications
The MPEP notes: A provisional application is not entitled to the right of priority of any other application under 35 U.S.C. 119 or 365(a) or § 1.55, or to the benefit of an earlier filing date under 35 U.S.C. 120, 121 or 365(c) or § 1.78 of any other application.
Additionally, No claim for priority under 35 U.S.C. 119(e) or § 1.78(a)(4) may be made in a design application based on a provisional application.
This limits the use of provisional applications in certain contexts.
For more information on USPTO Guidelines, visit: USPTO Guidelines.