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Oct 03 2007, 6:46 pm / Determined
The results of the poll posted indicates that 80% of the respondants think that a person may file for a "Provisional Patent". Unfortuantely, the simple and straightforward answer is NO - there is no such thing as a Provisional Patent. There is a Provisional Application for Patent which is just that an application not a granted patent.
A provisional application for patent provides the means to establish an early priority date for a subsequently filed non-provisional application. Once a provisional application has been filed, the use of the term "Patent Pending" is permissible. (Note - provisional applications may not be filed for design inventions.) Provisional applications are NOT examined on their merits and will become abandoned 12 months from its filing date. If a subsequent non-provisional application, claiming the benefit of the provisional application, is not filed within the 12 month period, the applicant loses the benefit of the earlier priority date which may adversely impact the patentability of the invention.
When a provisional application for patent has been filed, it is permissible to use the phrase "Patent Pending" when referring to the invention; however there are no enforceable patent rights until a patent has actually been granted. "Patent Pending" is used by a manufacturer or seller of an article to give notice that a current patent application covering the article is on file in the USPTO. It does not mean that patent has been or will be allowed, only that an application for a patent is currently on file. In layman's terms, it does not mean that you are awaiting receipt of a patent, just that your application is on file either awaiting examination or under examination. There are no enforceable patent rights associated with the use of "patent pending". However, there are penalties that can be imposed for false and/or deceptive use of the phrase.
If anyone has patent questions - please feel free to contact me at www.demayconsulting.com
David DeMay - Patent attorney
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