Are Provisional Patents Public? Behind Closed Doors Or In The Spotlight

If you have an invention that you want to protect, you may have heard of provisional patents.

These are a type of patent application that allow you to secure a filing date and claim “patent pending” status for your invention.

But are provisional patents public? Can anyone see your brilliant idea and copy it?

In this article, I will answer these questions and more, based on my years of experience as a reporter covering patent law and innovation.

Are Provisional Patents Public?
Are Provisional Patents Public?

What is a provisional patent application?

A provisional patent application is a U.S. national application filed in the USPTO under 35 U.S.C. §111(b). 

It is not a full-fledged patent application, but rather a simplified and lower-cost way to establish an early effective filing date for a later filed nonprovisional patent application.

A provisional patent application does not require a formal patent claim, an oath or declaration, or any information disclosure statement.

It also does not undergo examination by the USPTO and does not result in an issued patent.

It simply serves as a placeholder for your invention for 12 months, during which you can use the term “patent pending” to deter potential infringers and attract investors.

Are provisional patent applications public?

No, provisional patent applications are not published by the USPTO. 

They are kept confidential and are not available for public inspection or search.

This means that your invention remains a secret until you file a nonprovisional patent application that claims the benefit of your provisional patent application.

However, there are two exceptions to this rule. Your provisional patent application may become public if you:

  • Convert your provisional patent application to a nonprovisional patent application within 12 months of the filing date, or
  • File a nonprovisional patent application that references your provisional patent application within 12 months of the filing date, and your nonprovisional patent application is either published or issued as a patent.

In either case, your provisional patent application will be available for download by the public as part of the file history of your nonprovisional patent application.

However, this will only happen after 18 months from your earliest priority date, which is usually the filing date of your provisional patent application.

What are the benefits of keeping your provisional patent application secret?

By not publishing your provisional patent application, you can enjoy several advantages, such as:

  • Preserving your novelty and avoiding prior art. If your invention is disclosed to the public before you file a patent application, it may lose its novelty and become ineligible for patent protection. By keeping your provisional patent application secret, you can prevent others from using your invention as prior art against your nonprovisional patent application.
  • Maintaining your flexibility and options. If you change your mind about pursuing a patent for your invention, you can simply abandon your provisional patent application without any consequences. You can also modify or improve your invention before filing your nonprovisional patent application, as long as you do not add new matter that is not supported by your provisional patent application.
  • Avoiding additional costs and fees. Filing and publishing a nonprovisional patent application involves higher fees and expenses than filing a provisional patent application. By delaying the publication of your invention, you can save money and time, and use them for further development or marketing of your invention.

Conclusion

Are provisional patents public? The answer is no, unless you convert them to nonprovisional patent applications or file nonprovisional patent applications that reference them.

Keeping your provisional patent applications secret can have both benefits and drawbacks, depending on your goals and strategies.

Therefore, you should carefully weigh the pros and cons of publishing or not publishing your invention before filing your provisional patent application.

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