IP Monday Law Blog 

In the U.S., patent rights generally go to the first inventor to file — not the first to invent. Filing early secures your place in line. But the type of application you choose (provisional vs. non-provisional) can dramatically affect both your protection strategy and your costs.

Think of it the way Detroit’s automakers approach innovation. When a new engine part, safety feature, or design is still being tested, companies often file a provisional to secure their place in line while engineers refine the details. Once the invention is finalized, they move to a non-provisional, which can ultimately issue as an enforceable patent. Startups and solo inventors can benefit from this same two-step strategy.

Filing the wrong patent type can cost you priority rights — here’s a simple guide to choosing between provisional and non-provisional applications. In today's post, you'll learn:

• The key differences between provisional and non-provisional filings.
• When it makes sense to start provisional vs. go straight to non-provisional.
• Common traps inventors fall into with timing.

Provisional Patent Applications (PPAs)

• Lower filing fee and less formal requirements.
• Provides “Patent Pending” status for 12 months.
• Buys time to refine the invention, raise funding, or test the market.
• Must be converted to a non-provisional within 12 months, or rights are lost.

Non-Provisional (Utility) Applications

• Starts examination at the USPTO.
• Requires formal claims, drawings, and inventor oath/declaration.
• If allowed, issues into enforceable patent rights.
• Establishes priority date if filed first or properly claims back to a provisional.

Decision Guide

• Idea still evolving? → File a provisional.
• Prototype ready or tested? → File a non-provisional.
• Looking abroad? → Consider skipping provisional and filing a PCT or non-provisional directly.

Pitfalls to Avoid

• Filing a thin provisional with too little detail — may not actually protect your improvements.
• Missing the 12-month deadline to convert provisional to non-provisional.
• Assuming a provisional = “half a patent.” (It’s never examined; it only holds your place in line.)

FAQ

Q: Do I need drawings for a provisional?
A: Yes. Clear, well-labeled figures strengthen your application and support your written description.

Q: Can I add improvements later?
A: Yes, by filing additional provisionals or a continuation-in-part (CIP). But each filing only protects what’s actually disclosed at that time.

Q: How long does the process take?
A: The USPTO backlog means it may take 18–24 months before a non-provisional is first examined. Provisionals are never examined but serve as a placeholder for priority.

Q: Can investors see my provisional?
A: Yes, but only if you choose to share it. Many inventors use provisionals to secure “Patent Pending” before pitching.

Contact Us

Not sure whether a provisional or non-provisional is right for your invention? Schedule a patent roadmap call with Foster Swift's office and secure your priority rights with confidence.