Skip to content

USPTO guide

Provisional vs nonprovisional patent application

By , Co-founder, PatentAssist.ai
Updated

The choice is not either-or. A provisional is a placeholder that holds a date for a year; the nonprovisional is the application that becomes a patent. The real question is whether to file a provisional first or go straight to the nonprovisional. This page compares the two side by side and gives a decision guide. For how to prepare and file a provisional, see our provisional patent application guide; for the full application, see how to file a nonprovisional.

Quick answer

  • Provisional: $325 large entity, no claims needed, never examined, expires after 12 months.
  • Nonprovisional: $2,000 large entity, needs claims and declarations, examined, can become a patent.
  • The link: a nonprovisional filed within 12 months gets the provisional's date for whatever the provisional fully describes (35 U.S.C. 119(e)).
  • File a provisional first if you must disclose soon or the invention is still changing. Go straight to the nonprovisional if it is settled and you want a patent sooner.

Side-by-side comparison

Statutes and rules are cited in the cells. Fees are from the USPTO fee schedule effective January 19, 2025, with the small entity nonprovisional figure assuming filing in Patent Center.

Provisional vs nonprovisional US patent application
Provisional Nonprovisional
Statute 35 U.S.C. 111(b) 35 U.S.C. 111(a)
Purpose Secure a filing date cheaply while you develop, test or fund the invention Get the application examined and granted
Must contain A description meeting 112(a), drawings where needed, a cover sheet and the fee (37 CFR 1.51(c)) Specification with claims and abstract, drawings, each inventor's declaration and the fees (1.51(b))
Claims Optional At least one, and claims fees over 3 independent or 20 total
Examined Never Yes
Published Never published; the file becomes open to the public once a published application or patent claims its benefit (37 CFR 1.14) At 18 months from the earliest benefit date, unless a nonpublication request is filed at filing
Lifespan 12 months, then abandoned with no revival (111(b)(5)) Pending until it is granted or abandoned
Counts toward the 20-year term No (154(a)(3)) Yes, the term runs from its filing date
Lets you say "patent pending" Yes Yes
Basis for foreign priority within 12 months Yes Yes
Information disclosure statement Cannot be filed (1.51(d)) Expected; the duty of disclosure applies
Non-DOCX surcharge Does not apply $430 large if the text is not DOCX (1.16(u))
Available for designs No (35 U.S.C. 172) Yes
USPTO fees (large / small / micro) $325 / $130 / $65 $2,000 / $730 / $400 before excess claims

What the provisional date is actually worth

The provisional's date only helps claims it supports. Under 35 U.S.C. 119(e)(1), the nonprovisional gets the earlier date "as to such invention" as was disclosed in the provisional in the manner section 112(a) requires. A claim whose limitations are not described and enabled in the provisional is dated from the nonprovisional (MPEP 211.05). Nobody checks this when you file. It comes up years later, when an examiner or a defendant finds art published between the two dates.

So a provisional is only as good as its description. A full draft with drawings, alternatives and at least a set of claims gives a date you can rely on. A slide deck gives a date for very little. The provisional guide covers what to put in it.

Cost of each route

USPTO fees for the two routes, before excess claims and size fees. The provisional route costs one extra provisional fee; the nonprovisional fees are the same either way.

USPTO fees for filing a provisional first or a nonprovisional directly
Nonprovisional only Provisional, then nonprovisional
Large entity $2,000 $2,325 ($325 + $2,000)
Small entity $730 $860 ($130 + $730)
Micro entity $400 $465 ($65 + $400)

The official fees are rarely what decides it. A well-drafted provisional costs nearly as much professional time as a nonprovisional specification, and the claims, which a provisional may omit, take the most skill. The provisional's real price advantage is deferral: you pay for the full application a year later, when you know more about the invention and the market. Detailed fee tables are in USPTO patent fees.

Effect on timing, publication and term

Three clocks behave differently depending on which you file first. Publication runs 18 months from the earliest date claimed, which includes the provisional (35 U.S.C. 122(b)(1)). The 20-year term runs from the nonprovisional and ignores the provisional (154(a)(3)). Examination starts only when the nonprovisional is filed.

Worked example: invention ready on February 2, 2026

  • Nonprovisional only. Filed February 2, 2026. Effective date February 2, 2026; published around August 2027; queued for examination from February 2026; base expiry February 2, 2046.
  • Provisional first. Provisional February 2, 2026, nonprovisional Tuesday, February 2, 2027. Effective date February 2, 2026 for supported claims; still published around August 2027; queued for examination only from February 2027; base expiry February 2, 2047.

Same priority date and publication date. The provisional route trades a year of examination delay for a year of extra term at the far end, plus a year to improve the application and decide whether it is worth filing at all.

Decision guide: which to file

When to file a provisional or a nonprovisional application
Your situation Usually file Why
You will show, sell, publish or pitch the invention within weeks, and the full application is not ready Provisional now A date before the disclosure protects novelty abroad and stops races at home. Write it as completely as time allows.
The design is still changing and you expect to add embodiments or test data over the year Provisional, possibly several One nonprovisional can claim several provisionals, each giving its date to what it supports.
You need a fundraising or licensing story but cash is tight Provisional $130 for a small entity buys 12 months of "patent pending" and time to decide.
The invention is finished and you could write claims today Nonprovisional directly A provisional adds a filing and a fee but no protection, and delays examination by up to a year.
You want a granted patent as soon as possible, for enforcement or investors Nonprovisional directly, perhaps with Track One Examination only starts on the nonprovisional.
You are protecting the look of a product Design application Provisionals cannot support designs.
Only a one-page summary or slide deck is available Write more first, or file and then file again A thin provisional gives a date only to what it fully describes. File a fuller one as soon as you can.

If you plan to file abroad, either filing starts the 12-month Paris Convention priority year. Many countries, including the EPO's member states, give no general grace period for your own disclosures, so file before you disclose, whichever route you take. See European patent applications for the EPO side.

Moving from provisional to nonprovisional

  • Deadline: 12 months from the provisional, moved to the next business day if it falls on a weekend or federal holiday (35 U.S.C. 21(b)). Missed it unintentionally? File within 2 more months with a petition under 37 CFR 1.78(b) and a $2,260 fee ($904 small, $452 micro).
  • File a new application, do not convert: 37 CFR 1.53(c)(3) lets you convert the provisional itself, but the term is then measured from the provisional's date and you lose up to a year. The rule itself recommends claiming the benefit in a new nonprovisional instead.
  • Claim it properly: name the provisional by number in the ADS, within the later of 4 months from the nonprovisional's filing and 16 months from the provisional (1.78(a)(3)-(4)), and make sure at least one inventor is common to both.
  • Combine provisionals: one nonprovisional can claim several provisionals filed within the previous 12 months, as long as it is filed within 12 months of the earliest one you want to rely on.
  • Add what is new: improvements made since the provisional belong in the nonprovisional. They take the nonprovisional's date, so check that nothing published in between discloses them.
  • Then keep options open: once the nonprovisional is pending, later claims can come in a continuation application, which keeps the same dates.

Draft once, file either way

PatentAssist.ai drafts a complete specification with claims and drawings in USPTO format from an invention disclosure. File it as a strong provisional now, then build the nonprovisional from the same draft within the year, or file it as the nonprovisional directly. A registered practitioner should review either filing.

Try drafting free for 7 days Search prior art free

More USPTO guides

All guides, by patent office

Provisional vs nonprovisional: frequently asked questions

What is the difference between a provisional and a nonprovisional patent application?

A provisional (35 U.S.C. 111(b)) holds a filing date for 12 months. It needs no claims or declaration, is never examined or published, and cannot become a patent by itself. A nonprovisional (111(a)) is the full application with claims that the USPTO examines and can grant. A nonprovisional filed within 12 months can claim the provisional's date for what the provisional describes.

Is a provisional patent worth it?

It is worth it when you need a date before you are ready to file the full application: before a launch, a paper, a pitch or a trade show, or while the invention is still changing. It is not worth it when the invention is settled, because it delays examination and adds a fee without adding protection.

Does a provisional patent application extend the life of a patent?

In effect, yes. The 20-year term runs from the nonprovisional's filing date, not the provisional's (35 U.S.C. 154(a)(3)), so filing a provisional first can push expiry up to a year later. You get that only by filing a new nonprovisional that claims the provisional; converting the provisional itself measures the term from the provisional date.

Can I skip the provisional and file a nonprovisional directly?

Yes. A provisional is optional. Many applicants file a nonprovisional directly when the invention is ready, which also starts examination a year earlier.

What happens if I do not file a nonprovisional within 12 months?

The provisional expires and its date is lost. You have 2 more months to restore the benefit by petition under 37 CFR 1.78(b), if the delay was unintentional, with a fee of $2,260 ($904 small, $452 micro). After that, any nonprovisional gets only its own filing date, and anything you disclosed in the meantime may be prior art against it outside the US grace period.

How much more does a nonprovisional cost than a provisional?

USPTO fees are $325 for a provisional and $2,000 for a nonprovisional at the large entity rate ($130 and $730 small; $65 and $400 micro), before excess claims fees. The bigger difference is drafting: a nonprovisional needs claims and a polished specification.

Sources: 35 U.S.C. 111, 119, 122, 154 and 172; 37 CFR 1.16, 1.17(m), 1.51, 1.53 and 1.78 (eCFR, current as of October 22, 2026); MPEP 211.05; USPTO fee schedule (effective January 19, 2025, last revised August 14, 2026). Checked October 26, 2026. This guide is general information, not legal advice. Have a registered patent attorney or agent review your filing strategy.