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When writing a provisional application, do I need to treat it as if I'm drafting a non-provisional? Or can I just explain my invention and send it in, and it will be good as long as the provisional supports it?

I am trying to file my provisional application in a hurry to make sure I'm the first to file. But I have an internal battle stopping me from just filing my provisional application, as I feel I need to learn every detail of how to write a patent beforehand.

Should I just stop worrying, sit down and write a great provisional application explaining my invention in detail and get the benefit of priority date?

  • Related and possible duplicate: When exactly do you lose the provisionals priority – Maca Aug 5 '17 at 4:19
  • Sorry if km spamming the same question. If you like you can close it. I cant as im on mobile app – DeusIIXII Aug 5 '17 at 5:50
  • It may not be the same question: I raised it so that if you think your question is different, you can clarify. But if it's the same, that question should help you. – Maca Aug 6 '17 at 1:03
  • Well i guess in simple terms. Could i write out my PPA without worrying about how someone may work around it. Or worrying about if my PPA is broad enough yet narrow to hold up. Basically can i just simple write out my invention fjle it without all fhe necessary features and headaces of written a non provisional. Or should i treat the ppa no different then if ibwas writing a non provisional and make sure my describtion and claims. Are ao wrll written and researched hey can then go into the non provisional with no changes. Hope i summed that up well i feel like i didn't – DeusIIXII Aug 6 '17 at 1:45
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Should my provisional be written as if it were a non-provisional?

Yes.

A claim of your non-provisional application is entitled to the filing date of your provisional application if your provisional application adequately supports and enables the subject matter of the claim.

The reverse of this is that if your provisional does not adequately support and enable the subject matter of a claim, the claim is not entitled to the filing date of the provisional application.

For this reason, it is essential that your provisional application describes your invention is as much detail as you would describe it in a non-provisional application. If you fail to meet the "adequately support and enable" standard, it will be as if you never filed a provisional application.

Then why use a provisional application at all?

It entitles you to one more year of protection (since the 20 year term starts from the filing date of the non-provisional), and defers the filing and prosecution costs associated with the non-provisional.

While a provisional application does not have to meet the formality requirements of a non-provisional application, this is no benefit. This is because you would generally want your non-provisional application to be identical to your provisional application (though optionally omitting claims in the provisional), to avoid any doubt as to whether the claims of your non-provisional application are entitled to the filing date of your provisional application.

What if I'm in a hurry?

Get a patent attorney to do it for you. They know what they're doing, and can do it quickly if necessary.

But if that is not an option, you could quickly file a rough draft early, then file a second provisional shortly after which is more robust. You would then file a non-provisional (and any foreign applications) within 12 months of the first provisional, claiming the benefit of both.

The first provisional may or may not give you an earlier priority date, but it's at least arguable. But even if the first provisional is defective, the second one will at least save you (with only the cost of a few days or weeks of effective filing date).

  • So what i could do is file for a PPA. Which isnt a problem. As i believe i know enough about drafting a patent. Specification is used to describe how it works, how to put it together and matetials used. Claims describe what your trying to protect. Tbe specific make up of the invention. And hopefully try and claim both. Or i nake one rough ppa then a robust one even if my first one dont meet up. I can still use the priority date if the other persons is similar. If they see my PPA matvh theres but i filed first. They would be out of luck – DeusIIXII Aug 8 '17 at 0:09
  • @DeusIIXII I think I follow, and I think I agree. Though I should note that using a provisional with a view to undercutting someone else's application is not a conventional use of provisionals. Which is not to say it's wrong, just it's not the typical aim. – Maca Aug 8 '17 at 0:17
  • Well sometimes you have to think outside the box ;). Thanks again for your help. Your a legend bud. – DeusIIXII Aug 8 '17 at 0:22

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