The number of provisional patent application filings continue to rise. Well over 100,000 provisional patent applications have been filed each of the past five years.
For many, provisional applications are seen as a low-cost mechanism for claiming a priority date and for delaying the eventual higher cost of drafting and filing a non-provisional application. (A Google search for “provisional patent” resulted in ads for “$99 provisional patent”, “$139 provisional patent”, etc.) Others (especially those in the pharmaceutical industry) use provisional applications as a way to claim an additional year of at the end of the patent term.
Many patent attorneys criticize the use of provisional applications as a low-cost pathway — arguing that approach leads to a false sense of security because the low-quality applications will be insufficient to satisfy the disclosure requirements for later priority claims.
I am working on a project that looks at how patent applicants are using provisional patent applications. The heart of the project attempts to determine whether the provisional disclosure properly enables and describes the invention as eventually claimed. Those results are still pending. However, I thought I would present some preliminary information about the provisionals in our study.
Results: One of the low-cost benefits of provisional applications is that they have no formal requirements. Thus, a printed PowerPoint presentation, whitepaper, or circuit diagram could each serve as a provisional application. Patent claims are not required. However, we’re finding that about 60-70% of provisional applications are filed with at least one claim. About 50–60% really look like non-provisional patent applications. Around 15% of the provisional applications are essentially a stack of presentation materials. Almost all of the provisional applications are computer generated (rather than handwritten).