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Provisional patent applications are often the first step startups take to protect their IP, but that doesn’t mean they’re well understood. Founders hear they’re cheaper and “easier,” but what exactly is a provisional? What happens after you file one? And how strong is the protection, really?
Here are answers to the most common questions we hear about provisional patent applications.
A provisional patent application is a lower-cost, lower-formality way to establish an early filing date for an invention. It gives inventors and startups 12 months to test the market, refine the idea, talk to investors, or build out a product without needing to file a full (non-provisional) patent application right away.
Unlike non-provisional applications, a provisional doesn’t require formal patent claims, oaths, declarations, or even prior art references. But that doesn’t mean it’s a throwaway draft. To be truly effective, a provisional should thoroughly describe the invention in technical detail (because whatever isn’t disclosed in the provisional will not receive the benefit of its filing date).
No. A provisional patent application is not a granted patent, but a temporary legal placeholder that never gets examined or published by the USPTO unless it’s referenced in a later non-provisional filing. It gives inventors the right to say “patent pending,” but it doesn’t confer any enforceable rights on its own.
To actually receive a granted patent, you must file a non-provisional application within 12 months of submitting the provisional. That non-provisional is what gets reviewed by a patent examiner and, if approved, leads to a granted patent.
File your provisional patent application before you publicly disclose your invention. In the U.S., you have up to 12 months after a public disclosure to file, but many other countries have a strict “absolute novelty” rule. If the idea is published, demoed, shared, or offered for sale without a patent on file, it may no longer be patentable overseas.
That’s why the safest strategy is to file a provisional before:
The total cost of a provisional patent application typically includes two parts: the filing fee charged by the USPTO and the cost of drafting the application itself.
Filing a provisional application with the USPTO is relatively inexpensive. These fees are paid directly to the USPTO and are due at the time of filing:
Drafting costs, on the other hand, can vary:
Technically, the USPTO doesn’t examine provisional applications, so there’s no formal review process, and no risk of “rejection.” That leads many to assume provisionals don’t really have requirements. But that’s only half true.
While the USPTO won’t scrutinize the contents, a provisional still needs to meet the same legal standards of disclosure to be useful later. If it’s missing key information, it may not hold up when you try to claim priority in your non-provisional filing.
Here’s what a solid provisional should include:
No formal claims are required, but the more detailed and specific your description, the stronger your future patent application will be. If a feature isn’t described clearly, it can’t be protected later.
No, provisional patent applications are not made public by the USPTO. They remain confidential and are never published unless they’re referenced in a later non-provisional application.
That means if you file a provisional and decide not to pursue a non-provisional within 12 months, the provisional simply expires and stays private.
However, if a non-provisional is filed claiming priority to the provisional, and that non-provisional is eventually published (typically 18 months after its earliest filing date), the original provisional becomes part of the public record. At that point, the provisional will be accessible upon request.
Once you’ve filed your provisional patent application, the 12-month clock starts ticking. This one-year period gives you time to test the market, raise funding, iterate on the product, or prepare a stronger, more strategic non-provisional filing.
Before the 12-month deadline, you must file a non-provisional application to claim the benefit of the earlier provisional filing date. This is what gets reviewed by an examiner and can ultimately lead to a granted patent.
If no follow-up filing happens within that time, the provisional simply expires, and you lose the early filing date.
No, provisional patent applications cannot be extended. They expire exactly 12 months after the filing date. If no non-provisional is filed within that time, the provisional is abandoned and the priority date is lost.
This is why it’s essential to treat that 12-month period as a planning window, not just a delay tactic. Smart teams use it to identify what’s patent-worthy, gather data, and prepare a strong non-provisional that builds on the original disclosure.
That said, there’s also no requirement to wait the full twelve months to file the non-provisional application.
Yes, a provisional patent application gives you “patent pending” status, which can be enough to start conversations around licensing or selling your invention. Many startups use it to signal early-stage protection when pitching to investors, partners, or potential buyers.
But there’s a catch: a provisional doesn’t give you any enforceable rights. You can’t sue someone for copying your idea based on a provisional alone; it’s just a timestamped disclosure. That means any licensing deal is usually based on the assumption that a full (non-provisional) patent will follow.
If you’re considering licensing with just a provisional:
No, you don’t need a patent lawyer to file a provisional application. In fact, many startups draft and file provisionals on their own to save on legal costs. But whether that’s a smart move depends on the quality of the draft.
Again, provisionals aren’t reviewed by the USPTO, but they still need to be detailed, technically sound, and written like they’ll matter later. If you under-describe your invention or miss a key feature, you can’t go back and claim it later in your non-provisional.
Here’s where hybrid tools like Patentext come in. Patentext helps in-house teams generate detailed patent drafts — try it for free on your next provisional patent application.
Yes, you can file multiple provisional applications for the same invention, and in some cases, it’s a smart strategy.
Startups often evolve quickly. If you’ve added new features, discovered edge cases, or made technical improvements, it’s better to file another provisional than risk leaving something unprotected. Each new filing can serve as a building block toward a future non-provisional.
Here’s how this might look in practice:
Just keep in mind that each provisional only lasts 12 months, and the earliest one sets the clock. To claim the benefit of any provisional, you’ll need to file a non-provisional before it expires.
Additionally, each claim in a non-provisional application is assigned its own priority date (the date that determines what is “prior art” to that claim). So it’s important to include claims that are entirely supported by the first provisional application if you want to receive the benefit of that earliest filing date.
No, a pitch deck or prototype alone does not count as a provisional patent application. Even if it includes technical details, it won’t be recognized by the USPTO unless it’s filed as a provisional, with the proper documentation, cover sheet, and fee.
More importantly, pitch decks and prototypes usually lack the kind of written technical disclosure required for patent protection. Provisionals need to describe the invention clearly enough that someone skilled in the field could replicate it, which means slides and diagrams alone won’t cut it most of the time.
Yes, software-related inventions can be covered by provisional patent applications and are subject to the same requirements as every other type of invention.
However, software can be more “abstract” in the way it’s disclosed and claimed, which can create issues with patent eligibility. Patent eligibility is a complex and evolving area of law, so unfortunately, there’s no bright-line test to determine whether a software idea is eligible for patent protection.
That said, some helpful tips include:
Once your draft is ready, submitting a provisional application is surprisingly straightforward. Here's a step-by-step breakdown:
In many cases, yes, a provisional patent application is often a smart, cost-effective first step. It’s relatively cheap to file, doesn’t require formal claims, and gives you a full year to test your idea, iterate on your product, or seek funding.
That said, a bad provisional that’s vague, overly broad, or missing technical details can actually hurt your chances of getting a strong patent later. So the real question isn’t should you file, but can you file something detailed and defensible?
Patentext is a patent drafting platform built for founders and startups. Turn your technical idea into a detailed first draft — no endless back-and-forth with a chatbot needed.
Try Patentext for free on your next provisional patent application.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Patent laws are complex and vary by jurisdiction. For personalized guidance, consult a qualified patent attorney or agent.
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