Provisional patent applications are designed to put U.S. inventors on an even footing with foreign inventors. A foreign inventor who filed a patent application under the international Patent Cooperation Treaty could secure that filing date for a later filed U.S. application for up to twelve months.  The provisional application is intended to give U.S. inventors the same twelve month period in which to replace the provisional application with a non-provisional patent application. Like everything else, it has its advantages and disadvantages.

The filing fee for a provisional application much less than for a non-provisional. The provisional also secures an inventors place in line but does not start the time period running on the patent term. It does not require the submission of claims, (the legalese part of a patent) and so encourages inventors to self file. Acting as a placeholder, it gives the inventor time to further refine the invention, test the marketability of the invention, disclose the invention to third parties without fear of losing rights, and provides the time to secure proper patent counsel to draft the best possible non-provisional application without fear of an earlier filing by a competitor.

Nevertheless, some of these same advantages also work to the disadvantage of the inventor. The filing date of the provisional application starts the clock ticking on the 18 month publication date. Consequently, six months after filing a non-provisional patent application, the world will have published notice of the patent application. More seriously, it starts the clock ticking on the need to file in foreign countries to protect patent rights.

A provisional application only protects that which is disclosed. Information not disclosed, or inadequately disclosed, in the provisional application, is not subject to the earlier filing date. Therefore any provisional should be treated with the same respect as a non-provisional application.