There are some very good reasons to consider using a patent pending to protect your rights to new inventions. It takes literally one to three years to get a registered nonprovisional utility patent issued from the US Patent Office. You’re probably thinking right now, OMG that long! How am I ever going to get this business started? Well there is a solution and its called a patent pending or provisional patent. While a patent pending doesn’t guarantee that you have patent protection, it does preserve it, if you successfully get a patent issued at a later time.
Now there are two ways to get a patent pending. There is the simple and cheaper route and the more complicated and expensive way. Well now you’re probably thinking I like simple, and I do like to save money and quicker is always nice, so I’ll press the “Easy” button. Now hold on partner, easy is not always better. Lets discuss the pros and cons before you dash off and get your patent pending.
One way to get a patent pending for your invention is to submit a provisional patent application to the US Patent Office. A provisional patent application is the quick and dirty way to get a patent pending. It is quick and dirty because the US Patent Office doesn’t even examine it. You don’t even have to include a list of patent claims. You also don’t have to describe the prior art or file an oath and declaration. All you need to include in your application is a clear description of how to make and use your invention. Drawings aren’t required but they are recommended. Now there are a few other things you need to include with your provisional patent application. One item is a cover sheet with a title of your invention, a statement that this is a provisional patent application, the names and residences of the inventors and the name and registration number of your attorney or agent, if applicable. And don’t forget to include a check for the application fee. If you don’t pay you cannot play. Once you have filed your application for a provisional patent you now have a patent pending status for your invention for a period of one year.
A provisional patent is also a lot quicker than getting a registered nonprovisional utility patent. If you file a provisional patent correctly and pay the fees, you’ll get a patent pending as soon as it is received by the US Patent Office. If you want to get a patent pending really fast, all you have to do is file for it electronically.
A provisional patent is also cheaper. It will cost you about a hundred and twenty-five bucks for a provisional patent. In contrast the application fee for a nonprovisional patent starts at about $190. The real savings you receive from filing a provisional patent is that you probably won’t rack up hours and hours of attorney’s fees that run at about a $250 to $300 clip. Most nonprovisional utility patents will run you five to thirty thousand dollars out the door.
Well now that I got you all convinced to do the quick and dirty, I’ll dash a little water in your face in order to get you to reconsider. If you really want real patent protection you are going to have to file a nonprovisional patent application anyway. Keep in mind that a provisional patent, only gives you a patent pending for a year, unless you file a non-provisional patent application before it expires. And don’t expect friendly reminders from the US Patent Office to file your nonprovisional utility patent application. If you fail to file a regular patent application within twelve months, the provisional patent is considered abandoned and you’ll loose the filing date established by your provisional patent. If that happens, and you’ve been shopping your invention around, guess what, your idea is now public domain and you won’t be able to get a patent.
Now sometimes quick and dirty is nice, but in most circumstances taking the hard road is the best way to get you where you want to go. I know that doing patent searches is a drag, but wouldn’t it be good to know early on if there is something already out there that would prevent you from getting a patent. There is nothing worse that running off half cocked, writing business plans, making prototypes and trying to raise capital and then find out later that someone else already owns the patent rights to your idea.
So what I would suggest is at the very least, try to come up with some patent claims. If you include them in your provisional patent application, they will only make a stronger case when you apply for your nonprovisional utility patent. Writing claims will also assist you in searching the internet and the US Patent Office to see if there is any prior art that describes your invention. If there is, you’ve just saved yourself a bunch of time and money. If your search comes out clean, then go ahead and file either a nonprovisional or provisional patent application. Just remember that the clock is ticking if you decide to file a provisional patent.
Now there is one advantage to filing a provisional patent appplication prior to filing a nonprovisional patent application. By filing a provisional application first, and then filing a corresponding non-provisional application that references the provisional application within 12 months, your patent protection can be extended by as much as 12 months. With utility patents you can get up to twenty years of patent protection with a registered nonprovisional patent. Keep in mind that you have to pay maintenance fees after 3 ½, 7 ½ and 11 ½ years. These maintenance fees aren’t cheap! At 3 ½ years it will cost you $565 to keep your patent protection going. At 7 ½ years the cost jumps to $1,425.00. At 11 ½ years the cost balloons to $2,365.00. So by filling a nonprovisional patent first, you could potentially put off paying these maintenance fees another year. At the same time you get an extra year of patent protection.
There are some very good reasons to consider using a patent pending to protect your rights to new inventions. One of the main benefits is cost. Another reason to get a provisional patent is to get earlier patent protection while you apply for a nonprovisional utility patent. A nonprovisional patent application can also extent your patent protection and delay paying expensive maintenance fees for an extra year.