You have an invention but you're not but ready to file a formal patent application. You ask "Is there something I can do to protect myself until I file a formal patent application?" Congress may perhaps have supplied an answer in the form of a "provisional patent application".
A "provisional" application is a "light" version of a formal patent application. Like an actual patent application, a provisional is filed in the Patent Workplace, and will serve to supply a date of invention, and a priority date. In contrast to an actual application, a provisional application will not be examined by the Patent Workplace, and for that reason can never problem into a United States Patent. Unless followed by an actual patent application within 1 year, the provisional application will be discarded by the Patent Workplace, and it will have no value to the inventor. If the inventor fails to file a formal patent application within 1 year, the provisional application can't be revived.
Also, an inventor filing a provisional application ought to also be sure that the formal patent application is filed much less than 1 year immediately after any sale or public disclosure of the invention. Under U.S. Patent laws, a formal patent application must be filed much less than one year immediately after a sale or public disclosure of the invention. Filing a provisional application will not quit the clock from ticking. If a provisional patent application is filed, a formal patent application have to nonetheless be filed within 1 year of the sale or public disclosure.
Format of the Provisional
According to the statutes, the provisional application really should follow the exact same format as an ordinary patent application, except that the claims may perhaps be omitted. On the other hand, the statute particularly requires that the provisional application fulfill the initial paragraph of section 112 of the patent laws. The statute calls for: "The specification shall contain a written description of the invention, and of the manner and process of generating and applying it, in such full, clear, concise and exact terms as to allow any individual skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the identical, and shall set forth the most beneficial mode contemplated by the inventor of carrying out his invention."
In other words the statute has two requirements for the specification (the written description of the invention): that it be "enabling" and that it set forth the "top mode" of the invention. These terms are not new to those familiar to patent law, given that section 112 is a basic part of the law governing the content of patent applications in general. Each and every of these terms should certainly be examined separately to identify what each and every calls for of the applicant.
Enabling: when describing the invention, the inventor must give sufficient detail so that a further individual in the field of the invention could basically construct and use the invention.
Greatest mode: the inventor have to not conceal any information and facts concerning the top way of generating and making use of the invention. For example, if the inventor knows that a particular component would be far better constructed out of a material unique than the one specified, then the inventor is not setting forth the "greatest mode" of the invention.
Provisional applications ought to also contain drawings, "when essential to know the subject matter of the invention". In other words, if people cannot comprehend your invention from your description, you need to supply drawings. To satisfy the enablement requirement discussed above, drawings should certainly be provided to make it clear how your invention is composed and how it operates. It is constantly useful to offer at least a rough sketch, except if it is inappropriate to the invention.
Due to the fact the provisional application is new to United States patent law, it is uncertain how strictly the courts will interpret these needs in provisional applications. The Patent Workplace has indicated that provisional applications will be treated the similar as formal patent applications with regards to the specifications of section 112. Indeed, one of the purposes of the provisional application is to relax the specifications of a formal patent application to enable inventors to file some sort of application on their own. The inventor will need to preserve in mind that the provisional application will by no means be "examined" in the way that a formal patent application would be. Hence the inventor can likely satisfy these specifications, even if the details of the invention are crudely presented. Grammar and punctuation are unimportant, as lengthy as the appropriate particulars are somehow presented by means of some mixture of description and drawings.
A total provisional application consists of a cover sheet, a specification, any vital drawings, and the provisional application filing fee. A little entity statement really should also be included to enable the inventor to pay the decreased filing fee. The Patent Workplace will provide a cover sheet that may possibly be made use of to simplify filing. Nevertheless, it is not crucial that the inventor use to PTO supplied cover sheet. The cover sheet need to contain specific information to enable the Patent Workplace to identify and method the application, and need to contain the residence of each and every named inventor. Therefore, for simplicity it is suggested that the inventor use the PTO cover sheet.
Filing date: The very same needs are present to accord the provisional application a filing date, except that a formal application ought to be filed with at least 1 claim in order to be given a filing date. In addition, no oath or declaration is required. Section 1.53 of the Patent Workplace rules sets forth the specifications for a filing date. In common, the provisional application must have a written description, any required drawings, and the name of at least 1 of the inventors.
Conclusion
The provisional application is a widely used alternative for those unsure of how seriously they will pursue their inventions. After the provisional application is filed, the inventor may possibly further investigate the market place to ascertain if filing a formal patent application is worthwhile. The provisional application will present some protection for an inventor who is afraid that others might beat him to the Patent Office.
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