Welcome back to our course on Protecting Business Innovations via Patent.
We'll talk about this provisional patent, now,
the first step on your journey of getting a patent.
That's the first of the four steps that we talked about.
This first step gives you time and it starts the clock on your patent timing.
What that means is,
if you get your provisional patent and before somebody else does, you'll beat them.
You're the first to file. You win.
That's important. It also gives you one year of grace time on other timing,
effectively stopping the clock on some things like novelty or other requirements.
The provisional patent is your date of your patent.
It's when your patent is effective as of,
when you can start suing as of,
when you have priority versus other people as of the date of your provisional patent.
That is your patent date.
And that's a good thing because those patent protections are valuable to get earlier.
Some people think, well I should actually wait and file later or not file a provisional,
because maybe that makes my patent last a little longer,
maybe, or maybe I'll lose it entirely.
Maybe somebody gets a provisional and before you've got your full application in,
and they win. You're out.
You just lost because you were what we call sometimes
proverbial folk wisdom, penny-wise, pound-foolish.
You saved a couple of bucks and now you just lost your patent. You lost money.
So you can skip this step,
legally technically but you should not do that.
This starts the clock on first to file.
So it means you are effectively the first inventor as far as the government is concerned,
if you're the first to file a provisional patent.
Doesn't matter when you get
the full application and the provisional date is your patent date.
If somebody else files while you're preparing, they win.
So you do not want to be delaying and waiting for the full application,
and take the chance that someone else
files a one page simple provisional patent and blocks you.
Provisional patents also give you the right to say patent pending on your product,
which says I have applied for a patent,
I don't have a ruling yet.
So it's pending or waiting.
But this means you can sue.
You have the right to sue once your patent is
issued for anything back to the date of the provisional patent.
So you can go claim a lot of money for all the sales of
your competitor during the time when your patent was under review.
This can discourage competition because you may say,
I don't really want to get sued for everything I've done,
all the revenue I made,
that would be bad.
So I don't want to do that.
And sometimes companies abuse
this provisional patent by applying for a provisional patent,
putting patent pending on their product,
saying you don't want to compete with me,
I've got a patent in application,
and then never getting around to filing the real patent.
This means you might be in perpetuity always filing provisional patents.
Every year you file another one on something else,
some other feature or some other aspect,
and you never actually get a patent and submit it.
You just do the provisional part.
That's a kind of abuse, but it might work,
at least for a while until companies figure out you're
bluffing and they decide I don't care what he's got patent pending on,
he never gets a patent.
But in the short term, it might give you money,
might give you some protection.
Provisional patent also is not seriously reviewed.
The patent office doesn't pay much attention.
It's almost automatic and it's easy to do at low cost.
You can do it yourself without an attorney and still be reasonably safe.
So provisional patents, cheap, quick,
easy if you hire an attorney you don't have to pay him a lot of money,
this is good news.
It can also be amended a lot before the formal patent application.
It has to relate to the formal application and your amendments have to make some sense.
You can't entirely transform it into something different,
but you can do a lot of modifications, or enhancements,
or more amending of your provisional patent,
you can't of the formal patent.
So why do we want this?
Well, it starts the clock.
It stops the clock on publication timing,
so it gives you one year after your provisional patent to file your formal application.
It starts the clock on patent timing and so it stops competitors.
You could skip it,
but you really shouldn't,
and it gives you the right to say patent pending.
So it gives you some valuable strategic or competitive deterrents
that might be worth considering as well.
So provisional patent cheap, easy,
quick to do and worth doing. Thank you.
Theodore Henry King CLARKAssociate Professor
