Buying Time

Words to the Wise

As wonderful as this type of application sounds, I have a few words of caution. You should know that a provisional application for a patent is not examined on its merits. Therefore, don't assume that because you have a provisional application on file, you'll automatically receive a patent when you file a formal application.

Also, when you disclose your invention, be as complete and comprehensive as possible. If, for some reason, the claims in your formal application aren't supported by your earlier provisional application, you won't be allowed to use the filing date of the provisional application. Also, there must be at least one common inventor on both the provisional and nonprovisional applications, or you not only lose your place in the application line, you forfeit the rights to your idea altogether.

There are some additional rules you need to follow to keep your provisional application legitimate. You must file a formal patent application before the one-year deadline. If that deadline falls on a Saturday, Sunday or federal holiday, your formal patent application must be filed beforehand. If you take no action to turn a provisional application into a formal patent application within the one-year time frame, the application will automatically be abandoned by the PTO. Also, filing a provisional patent without the appropriate cover sheet and filing fee will result in a surcharge of as much as several hundred dollars.

Although a provisional application (as well as a formal patent application) can be filed without the help of an attorney or agent, it's highly recommended that you at least consult with one or the other before filing. The laws and filing procedures are very complex; it would be a shame to unknowingly make a mistake and have it negatively impact your invention. For a listing of patent attorneys and agents in your area, you can go to the PTO Web site ( or call (202) 512-1800.

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This article was originally published in the March 1999 print edition of Entrepreneur with the headline: Buying Time.

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