What is the difference between a provisional and a non-provisional patent application?

Question

The Detailed Description of this patent application begins with the sentence:

This is a non-provisional application based upon U.S. provisional patent application Ser. No. 61/451,429, entitled “VENTED SPOUT”, filed Mar. 10, 2011, which is incorporated herein by reference.

Some questions are:

1. What is meant by "non-provisional patent application?"

2. Can a "non-provisional application" holder stop sales of a similar product?

3. How do we know that a particular product can not be sold due to patent registration?

Answer 1

1) what is meant by "non-provisional patent application?"

A patent application is a set of documents an inventor files with the patent office in the hopes of obtaining a patent. There are "provisional" patent applications" and "non-provisional" patent applications. It would be slightly less accurate, but probably also slightly clearer, to refer to a provisional patent application as an "informal" patent application and a non-provisional patent application as a "formal" patent application instead.

Filing a provisional application is a relatively inexpensive mechanism for an applicant to document their invention with their patent office, thereby "calling dibs" on their invention as of the date the provisional application is filed. The applicant then has one year to decide whether or not to formally pursue patent protection for their idea. If they decide they do not want to move forward, they do nothing and one year after filing, the provisional application expires and is never heard from again. If they decide they do want to move forward, they can file a non-provisional patent application that, if done right, can "claim priority" back to the filing date of the provisional application.

2) can a "non-provisional application" holder stop sales of a similar product?

No, a patent applicant does not yet have an issued patent and thus has no right to exclude anybody from doing anything.

Once a patent issues from an application, the patent applicant becomes the patentee and theoretically has the right to exclude others from making, using, selling, and/or importing into the United States, infringing products. (There's a whole separate topic on the distinction between a "similar" product and an "infringing" product.) (I say theoretically because a patent owner is not always entitled to an injunction, which would "stop sales" of an infringing product - but that is also better suited for a separate topic).

3) how do we know that a particular product can not be sold due to patent registration?

Sell the product. If no one sues you, you're fine.

Although that sounds sarcastic, unfortunately it's closer to the truth than not. If you're contemplating selling a product and you're worried about patents in general or a patent in particular, you can obtain an "opinion of counsel" letter from an attorney that, hopefully, gives you a good faith basis for believing your product does not infringe the claims of a valid patent. The letter won't stop you from being sued or, if your product is found to be infringing, being liable for damages, but it should help prevent you from being penalized for "willful" patent infringement.

Answer 2

Good explanations on points 1 & 2 from Jay Smith-Hill, but I'd like to expand on point 3:

How do we know that a particular product can not be sold due to patent registration?

The sum of his answer is correct to a point ... you cannot know without a shadow of a doubt. You can, however, take reasonable care by performing (or, preferably, having a professional perform) a patent search.

Do it yourself

This should always be first - and start by reading Patent It Yourself for a good understanding of patents - what they are, how they work, and how the process of applying for one works. Then, read and follow Patent Searching Made Easy.

Doing it yourself should really be a first pass to help you understand what else is out there - preferably while you are still designing your invention and before you approach a patent practitioner (attorney or agent). As a general rule, the more you know already, and can give to the practitioner, the better able they are to help you, the better results you get, and the less you spend.

Pay for a patent search

A patent search professional - some people prefer doing it through a patent attorney or agent (agent is more common, as they are lower-priced per hour than attorneys), some people prefer using a 3rd party search professional (not a patent practitioner, but often hired by them).

Starting with a thorough description of your invention and as many variations and features of it as you can think of, they will (should) systematically search the patent literature - US and worldwide, as applicable - for the closest prior art reasonably able to be found. They will do this through text searches, advanced (boolean) text searches, classification searches (searching in specific classes of patent literature), and through 'cited literature' (finding a reasonably similar patent application to your invention and looking at the literature cited by the USPTO examiner and/or the inventor as being potential prior art).

At the end, you will not have found every possible piece of prior art, but you will (should) have a reasonably accurate picture of the prior art surrounding your inventive space, and a better idea for how to move forward.

Hope this helps!

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NOTE: This is NOT legal advice. Consult an attorney.