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What is a patent?

A patent permits the owner of the patent to prevent anyone else from producing the product or using the process covered by the patent. Think of Thomas Edison and his most famous patented invention, the light bulb.

A provisional patent application is a step toward obtaining a utility patent, where the invention might not yet be ready to obtain a utility patent. In other words, if it seems as though the invention cannot yet obtain a utility patent, the provisional application may be filed in the Patent Office to establish the inventor's priority to the invention.As the inventor continues to develop the invention and make further developments which allow a utility patent to be obtained, then the inventor can "convert" the provisional application to a full utility application.

A provisional patent has several benefits:

A) Patent Pending Status: The most well-known benefit of a Provisional Patent Application is that it allows the inventor to immediately begin marking the product "patent pending."

C) Establishment of a filing date: The provisional patent application also provides the inventor with a crucial "filing date." In other words, the date that the provisional is filed becomes the invention's filing date, even for the later filed/converted utility patent.

Requirements for obtaining a utility patent

A) Novelty: To obtain a utility patent, you must initially determine whether your invention is "novel". For example, if you were to apply for a patent on the light bulb, it seems quite clear that you would not be entitled to a patent, since the light bulb is not a new invention. In rejecting your patent application, the Patent Office would actually cite the Edison light bulb patent against you as relevant "prior art" (prior art is everything "known" prior to your conception of the invention or everything known to the public more than one year before you file a patent application for the invention).

Any trivial physical difference will suffice to render your invention novel over a similar invention.If you were to invent a square light bulb, your invention would actually be novel compared to the Edison light bulb (since his was round/elliptical). If the patent office were to cite the round Edison light bulb against your square one as prior art to show that your invention was not novel, they would be incorrect. However, if there exists an invention which is identical to yours in every way your invention lacks novelty and is not patentable.

What is considered prior art by the Patent Office?

A) Prior art which dates back prior to your date of invention: It would seem to make sense that if prior art exists which dates before your date of invention, you should not be entitled to obtain a patent on that invention since you would not truly be the first inventor. Section 102(a) of the patent law specifically describes the things which can be used as prior art if they occur before your date of invention:

1) Public knowledge in the United States: Any evidence that your invention was "known" by others, in the United States, prior to your date of invention. Even if there is no patent or written documentation showing that your invention was known in the United States, the PTO may still reject your patent application under section 102(a) as lacking novelty if they can show that your invention was generally known to the public prior to your date of invention.

2) Public use in the United States: Use by others of the invention you are attempting to patent in public in the United States, prior to your date of invention, can be held against your patent application by the PTO.

3) Patented in the United States or abroad: Any United States or foreign patents which issued prior to your date of invention and which disclose your invention will be used against your patent application by the PTO.

1) Commercial activity in the United States: If the invention you wish to patent was sold or offered for sale in the United States more than one year before you file a patent application, then you are "barred" from ever obtaining a patent on your invention.

2) Public use in the United States: If the invention you wish to patent was used in the United States by you or another more than one year before your filing of a patent application, then you are "barred" from ever obtaining a patent on your invention.

4) Patented in the United States or abroad: If a United States or foreign patent covering your invention issued over a year prior to your filing date, you will be barred from obtaining a patent. Compare this with the previous section regarding United States and foreign patents which states that, under 102(a) of the patent law, you are prohibited from getting a patent if the filing date of another patent is earlier than your date of invention. Under 102(b) which we are discussing here, you cannot get a patent on an invention which was disclosed in another patent issued over a year ago, even if your date of invention was before the filing date of that patent.