Provisional Application

A type of patent application, most notably available in the US (but not in the UK or Europe), that secures a filing date for an invention on the basis of a brief description of the invention rather than a fully drafted patent specification.

A provisional application is never examined or granted. Instead, it serves to establish a priority date for the subject-matter it contains, allowing a standard (or "non-provisional") patent application to be subsequently filed within the following 12 months that "claims priority" back to the filing date of the provisional application. They are intended to provide inventors with a quick, cost-effective way of securing a priority date for their invention whilst deferring the cost of preparing a full patent application - potentially enabling the inventor to disclose their invention before the full patent application is filed.

However, extreme caution needs to be exercised when relying on a provisional application if protection in the UK or Europe will ultimately be sought. This is due to the generally stricter approach that is taken to assessing added subject-matter and priority claims in these jurisdictions. Specifically, it is necessary to ensure that the provisional application contains enough technical detail, carefully described using language that will support the claims of the later application. This is because a claim directed to subject-matter that is not considered to be disclosed in the provisional application will not be entitled to claim priority meaning that any disclosure of that subject-matter made between filing the provisional application and the non-provisional application will be prior art and may prevent the patent from being granted.

Practically, therefore, when protection in the UK or Europe (as well as many other jurisdictions) is desired, it is typically necessary to put a similar level of drafting effort into the filing of a provisional application as a non-provisional application, largely negating the intended benefits of the provisional application.