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Why Pursue A Provisional Patent Application?

On Behalf of | Sep 29, 2023 | BUSINESS & COMMERCIAL LAW - Intellectual Property

When businesses are particularly innovative, they may produce novel inventions, product designs and/or manufacturing processes that serve as valuable intellectual property.

Unlike trademarks and copyrights, which tend to be relatively enforceable even if they haven’t been formally safeguarded, seeking protection for a novel invention via a patent is almost always necessary for a business that doesn’t want its rights to be infringed upon and/or accused of infringing upon the rights of others.

The role that provisional patents play

The vast majority of patents granted by the U.S. Patent and Trademark Office (USPTO) are utility patents. Unlike the process of applying for a design patent, the process of applying for a utility patent can be substantially less risky than it might otherwise be, thanks to the provisional patent application process.

The greatest vulnerability that most businesses face during the patent application process is the risk that the USPTO will insist that emerging prior art nullifies the novelty of a new invention. The agency evaluates prior art against the application submission date stamp assigned to every invention’s non-provisional patent application.

If a business wants to safeguard its invention against claims of prior art while it works with a legal team to draft its non-provisional patent application, it can submit a provisional patent application up to 12 months before submitting its final non-provisional paperwork. The non-provisional submission date stamp will then reflect the date of submission for the provisional patent application, not the later non-provisional one.

It’s a technical process that is preoccupied with timing. Yet, there’s no question that submitting a provisional patent application for a utility patent can mean the difference between the ultimate approval of a non-provisional patent application and a rejection due to claims of prior art submitted in the time it takes a business to get its non-provisional paperwork together.