How to file a provisional patent application in the US

What a provisional patent application is

A provisional is a US application filed under 35 U.S.C. 111(b). Its filing date is the day the USPTO receives a specification, with or without claims (111(b)(4)). A nonprovisional application filed within 12 months that refers to it is treated, for the invention the provisional discloses, as if it had been filed on the provisional's date (35 U.S.C. 119(e)(1)). Under first-inventor-to-file, that date decides which prior art counts against you.

• It is never examined. Provisionals are not subject to examination under 35 U.S.C. 131 (111(b)(8)).
• It is not published (35 U.S.C. 122(b)(2)(A)(iii)). Once a published application or patent claims its benefit, anyone can order a copy from the USPTO (37 CFR 1.14(a)(1)).
• It cannot itself claim priority from an earlier application, US or foreign (111(b)(7)).
• It does not use up patent term. The 20 years run from the nonprovisional's filing date, and the provisional's date is not counted (35 U.S.C. 154(a)(2) and (3)).
• It is only available for utility inventions. A design application cannot claim the benefit of a provisional (37 CFR 1.78(a)).

What a provisional must contain

A complete provisional application has four parts (37 CFR 1.51(c)):

1. A cover sheet that identifies the filing as a provisional and gives each inventor's name and residence, the title, the correspondence address, the attorney or agent and docket number if any, and any US government agency and contract number. Form PTO/SB/16 or an application data sheet does this. Without a cover sheet the filing is treated as a nonprovisional (37 CFR 1.53(c)(1)).
2. A specification as prescribed by 35 U.S.C. 112(a): a written description of the invention and of how to make and use it.
3. Drawings, where they are needed to understand the invention (35 U.S.C. 113).
4. The filing fee and any size fee (37 CFR 1.16(d) and (s)).

The fee and cover sheet can follow after the filing date with a surcharge (37 CFR 1.53(g)). No inventor's oath, no claims and no information disclosure statement are needed; an IDS cannot be filed in a provisional at all (37 CFR 1.51(d)). File electronically through Patent Center, the only electronic route the USPTO accepts for provisionals. After filing, the content cannot be amended except to comply with the rules (37 CFR 1.53(c)).

Written description and enablement still decide the date

The formal requirements are light. The disclosure requirement is not. Section 119(e)(1) gives the nonprovisional the earlier date only for an invention "disclosed in the manner provided by section 112(a)" in the provisional, best mode aside. Each claim of the nonprovisional needs written description support and an enabling disclosure in the provisional. A claim without that support gets the nonprovisional's own filing date.

New Railhead Mfg. v. Vermeer Mfg., 298 F.3d 1290 (Fed. Cir. 2002) shows what that costs. The inventor sold drill bits in the spring and summer of 1996, filed a provisional on February 5, 1997, and filed the nonprovisional on November 12, 1997. Claim 1 required the bit body to be angled with respect to the sonde housing. The provisional never said so, and the drawings did not clearly show it. Without the provisional's date, the 1996 sales were more than a year before the nonprovisional, and the patent was held invalid under the on-sale bar. It did not help that the inventor had built the angled bit by the time he filed the provisional.

Why claims and drawings help anyway

• Claims test the description. Writing even a rough claim set shows which features you will rely on, and whether the text describes each of them, its alternatives and the broader category it belongs to.
• Claims make conversion possible. A provisional that already contains a claim can be converted to a nonprovisional under 37 CFR 1.53(c)(3) without an amendment. Conversion measures the patent term from the provisional's date, so filing a new nonprovisional that claims the benefit is usually better.
• Drawings carry detail text misses. In New Railhead the drawings were the inventor's last hope, and they failed because the feature could not be seen in them. Label the features you may claim and refer to them in the description. Our patent drawings page covers how to prepare them.
• The nonprovisional starts further along. A provisional written like a full specification can become the nonprovisional with little rework.

Provisional patent cost: USPTO fees

From the USPTO fee schedule in force since January 19, 2025. Small entity status covers independent inventors, nonprofits and businesses with fewer than 500 employees (37 CFR 1.27); micro entity status adds income and filing-history limits (37 CFR 1.29).

The last row is the basic filing ($350), search ($770) and examination ($880) fees for the nonprovisional at the large-entity rate, before fees for excess claims and pages. The small-entity figure assumes electronic filing, which cuts the small-entity basic filing fee to $70 (37 CFR 1.16(a)). None of the provisional fee is credited toward it. Drafting is the larger part of the real cost, and it scales with how complete the provisional is.

The 12-month deadline

• File within 12 months. The nonprovisional, or a PCT application designating the US, must be filed no later than 12 months after the provisional (35 U.S.C. 119(e)(1), 37 CFR 1.78(a)). If the last day falls on a Saturday, Sunday or federal holiday, the deadline moves to the next business day (119(e)(3)).
• No extension, no revival. The provisional is abandoned at 12 months and cannot be revived (111(b)(5)).
• Restoration for unintentional delay. If the nonprovisional is filed within 2 months after the deadline, the benefit can be restored on petition with a statement that the delay was unintentional and the 37 CFR 1.17(m)(3) fee of $2,260, $904 or $452 (37 CFR 1.78(b)). Treat this as a safety net, not a plan.
• Claim the benefit correctly. The nonprovisional must name at least one inventor of the provisional and identify it by application number in the application data sheet, within the later of 4 months from the nonprovisional's filing date or 16 months from the provisional's (37 CFR 1.78(a)(2)-(4)).

"Patent pending"

Once the provisional is on file you can mark the product "patent pending" for as long as an application is pending. Using the phrase when no application is pending, to deceive the public, is false marking under 35 U.S.C. 292. The mark itself gives no rights. A provisional cannot be enforced against anyone; only a granted patent can.

Filing abroad: Paris and PCT priority

A US provisional is a regular national filing for the purposes of the Paris Convention (Article 4), so it starts the 12-month priority period. A PCT application filed within that period can claim it (PCT Article 8), as can direct applications at the EPO or other offices. The same 12 months therefore govern the US nonprovisional and the foreign filings.

Two points catch US applicants. First, filing abroad needs a foreign filing license. The USPTO filing receipt usually grants one; otherwise you must wait 6 months after the US filing (35 U.S.C. 184). Second, the US one-year grace period for your own disclosures does not exist at most other offices, including the EPO. File the provisional before any public disclosure if foreign rights matter.

Provisional vs nonprovisional application

When to skip the provisional

A provisional earns its place when you need a date before a launch, paper or pitch, or when the invention will change in the next year. File the nonprovisional directly when:

• The invention is settled and you could write the full specification and claims now. A provisional adds a second filing and fee without adding protection.
• You want a patent soon. Examination starts only with the nonprovisional, so a provisional can add up to a year before the first office action.
• The only provisional you could file today would be a thin one. It costs a fee and gives a date that may not hold, as New Railhead shows.
• You are filing a design application, which cannot claim a provisional's benefit.

Before you file either, run a prior art search or search US patents for free on our USPTO search page. India has its own rules for provisionals; see provisional vs complete specification in India if you are filing at IP India.

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