A provisional patent application is a lower-cost U.S. filing, authorized by 35 U.S.C. § 111(b), that secures an early filing date for an invention without formal claims or an inventor’s oath or declaration. It is never examined and cannot become a patent by itself: to keep its filing date, you must file a non-provisional application claiming its benefit within 12 months. You can file a provisional through the USPTO’s Patent Center for $325, $130 or $65, depending on entity size.
Used well, a provisional buys time to test the market, raise money or refine the invention while protecting your place in line. Used carelessly, it can give a false sense of security. Here is how it works and when to file one.
What Is a Provisional Patent Application?
Under the statute, a provisional application receives a filing date on the day the USPTO receives a specification, with or without claims. The United States uses a first-inventor-to-file system, so that early date can matter a great deal. A later non-provisional application that properly claims the provisional gets the benefit of the earlier date for everything the provisional adequately disclosed. For a closer look at how these dates interact, see patent filing date vs. priority date.
A few features set provisionals apart:
- They are not examined on the merits, and no patent issues from them.
- They cannot themselves claim priority to any earlier U.S. or foreign application.
- They are available for utility and plant inventions, but not for designs.
- The time a provisional is pending does not count against the 20-year term of a patent that later claims its benefit.
What a Provisional Application Must Include
According to the USPTO’s provisional application guidance, a provisional should include:
- A written description of the invention that complies with 35 U.S.C. § 112(a)
- Any drawings necessary to understand the invention
- A cover sheet (Form PTO/SB/16) identifying the application as a provisional and listing the inventors, title and correspondence address
- The provisional filing fee
Formal claims, an inventor’s oath or declaration, and an information disclosure statement are not required. That is what makes a provisional faster and cheaper to prepare, but it does not mean the description can be thin.
Why the Written Description Matters
A non-provisional application gets the benefit of the provisional’s filing date only for an invention disclosed in the provisional in the manner required by § 112(a), meaning a written description that shows possession of the invention and enables someone skilled in the field to make and use it. If the claims you eventually pursue cover features, variations or embodiments the provisional did not describe, those claims get only the later non-provisional filing date. Anything published or filed by others in between could then count as prior art against them.
The practical takeaway is to treat a provisional as a detailed technical document, not a placeholder. Include how the invention works, alternative versions, materials, ranges, flowcharts and drawings. Our article on the patent written description requirement explains the standard in more depth.
The 12-Month Deadline and Restoring a Missed Benefit Claim
A provisional application is pending for 12 months, and the USPTO states that this period cannot be extended. If the 12-month date falls on a Saturday, Sunday or federal holiday in the District of Columbia, the deadline moves to the next business day. After 12 months the provisional is abandoned and cannot be revived.
There is a narrow safety valve. Under 35 U.S.C. § 119(e) and 37 C.F.R. § 1.78(b), if you file the non-provisional within two months after the 12-month period (14 months from the provisional filing date) and the delay was unintentional, you can petition to restore the benefit claim. The petition requires the benefit claim in an application data sheet, the petition fee and a statement that the delay was unintentional. Restoration is not automatic and should not be part of the plan.
The benefit claim itself also has a deadline. For a non-provisional filed under § 111(a), the reference to the provisional must be made in an application data sheet within the later of four months from the non-provisional filing date or 16 months from the provisional filing date.
Using “Patent Pending”
While a provisional is pending, you may mark the product or its materials “Patent Pending.” That tells competitors and potential licensees that an application is on file. It does not give you enforceable patent rights. Those arise only if a patent issues from a later non-provisional application.
Provisional Patent Application Filing Fees
Under the USPTO fee schedule in effect since January 19, 2025, the provisional filing fee is $325 for a large entity, $130 for a small entity and $65 for a micro entity. Small entity status generally covers individuals, nonprofits and businesses with no more than 500 employees; micro entity status adds limits on prior applications and income. See micro entity vs. small entity status.
Keep in mind that the provisional fee is only the first step. The non-provisional application brings filing, search and examination fees of $2,000, $800 or $400 depending on entity size, plus issue and maintenance fees later. Our guide to how much a patent costs breaks down the full budget.
Converting a Provisional to a Non-Provisional Application
People often talk about “converting” a provisional, but the usual path is to file a new non-provisional application under § 111(a) within 12 months that claims the benefit of the provisional. The non-provisional includes claims, the inventor’s oath or declaration, and the full filing, search and examination fees, and it can add improvements developed after the provisional was filed. New material gets only the non-provisional filing date.
The statute also allows a request to treat the provisional itself as a non-provisional application. The USPTO’s Manual of Patent Examining Procedure cautions that doing so measures the patent term from the provisional filing date, which shortens the effective term. For that reason, filing a separate non-provisional that claims the provisional’s benefit is usually preferred.
Foreign Filing and the Paris Convention
A U.S. provisional application is a regular national filing that starts the Paris Convention priority year. Under Article 4C of the Paris Convention, the priority period for patents is 12 months. If you want protection outside the United States and want to rely on the provisional’s filing date, you generally must file foreign applications, or an international application under the Patent Cooperation Treaty, within 12 months of the provisional filing date. That is the same deadline as the U.S. non-provisional, so decisions about foreign protection need to be made during the provisional year.
The One-Year Grace Period and Its Risks
U.S. law gives inventors some protection if they disclose before filing. Under 35 U.S.C. § 102(b)(1), a disclosure made one year or less before the effective filing date is not prior art if it was made by the inventor (or by someone who obtained the subject matter from the inventor), or if the inventor had already publicly disclosed the same subject matter before a third party did.
Relying on the grace period is risky:
- Foreign rights. Many other patent systems are far less forgiving. The European Patent Convention, for example, disregards a prior disclosure only in narrow situations such as evident abuse or display at certain officially recognized international exhibitions.
- Proof problems. You may have to show that an intervening disclosure came from you or that your earlier disclosure covered the same subject matter.
- Variations. A third party’s disclosure of a related but different version of the invention may still count as prior art.
Filing a solid provisional before any public disclosure, pitch deck, trade show or product launch avoids most of these problems.
When a Provisional Application Makes Sense
- An imminent disclosure. You plan to present at a trade show, publish, launch a crowdfunding campaign or pitch investors without a confidentiality agreement.
- Budget timing. You want to defer the larger cost of a non-provisional while you confirm market demand.
- Ongoing development. The core invention works, but you expect improvements over the next year.
- International plans. You want a 12-month window to decide where to file abroad.
A provisional may add little value if the invention is complete and you want examination to start as soon as possible, and it is not an option for design patents.
How to File a Provisional Patent Application
- Prepare a detailed written description and drawings covering the invention and its variations.
- Complete the provisional cover sheet (PTO/SB/16), or an application data sheet, identifying the inventors and the application as a provisional.
- Determine whether you qualify for small or micro entity status.
- File electronically through Patent Center, or by mail, and pay the filing fee.
- Docket the 12-month deadline for the non-provisional and any foreign or PCT filings, and plan to start drafting claims well before it.
Talk to Revision Legal Before You File
A provisional application is only as strong as what it discloses, and the 12-month clock starts the day it is filed. Revision Legal works with our patent counsel to help inventors and businesses decide whether a provisional fits their plans, prepare a thorough application and meet the non-provisional and foreign filing deadlines. To discuss your invention, contact our patent lawyers. Contact us through the form on this page or call (855) 473-8474.
Frequently Asked Questions
How long does a provisional patent application last?
A provisional application is pending for 12 months from its filing date, and that period cannot be extended. If the last day falls on a weekend or federal holiday, it moves to the next business day. To keep the filing date, you must file a non-provisional application claiming its benefit within that window. A narrow petition process can restore the benefit if you file within 14 months and the delay was unintentional.
Does a provisional patent application need claims?
No. Formal claims, an inventor’s oath or declaration, and an information disclosure statement are not required. The provisional must still include a written description that meets 35 U.S.C. § 112(a) and any drawings needed to understand the invention. Later claims only get the provisional’s filing date for subject matter the provisional actually describes, so a thin description can undercut the benefit.
How much does it cost to file a provisional patent?
Under the current USPTO fee schedule, the provisional filing fee is $325 for a large entity, $130 for a small entity and $65 for a micro entity. Professional fees depend on how detailed the application is. Remember that the non-provisional application filed within 12 months carries its own filing, search and examination fees, so the provisional fee is only the first cost.
Can I file a provisional application for a design patent?
No. The USPTO does not accept provisional applications for design inventions. Provisionals are available for utility and plant inventions. If you want to protect the ornamental appearance of a product, you file a design application directly. Its priority period for foreign filing under the Paris Convention is six months rather than the 12 months that applies to utility patent filings.
What happens if I miss the 12-month provisional deadline?
The provisional becomes abandoned and cannot be revived. If you file a non-provisional within two more months and the delay was unintentional, you may petition to restore the benefit claim. Otherwise, the non-provisional gets only its own filing date, and any public disclosures or third-party filings made after the provisional date may count as prior art against your claims.
