Provisional or Non-Provisional Patent Application?
Published April 2021 | Reviewed March 2026
By John R. Nelson, Esq.
Key Takeaways
- A provisional patent application preserves an early filing date for 12 months but does not by itself mature into a patent.
- A non-provisional patent application is required to begin examination at the USPTO and must include formal claims.
- The provisional route costs less up front but adds an extra step and a hard deadline that cannot be extended.
- Choosing the wrong filing path, or filing a provisional that does not adequately describe the invention, can waste time and money.
- Working with a registered patent attorney early in the process helps you choose the right strategy for your invention.
The first step in the patent application process is trying to decide whether to file a provisional application or non-provisional application. For clarity, there is no such thing as a "provisional patent", just a provisional patent application. It is important to understand the key differences between a provisional and non-provisional application:
Provisional Application
- Expires after one year
- No examination made by the USPTO
- Less formal, fewer requirements
- Cannot extend the deadline
Non-Provisional Application
- Can make reference to the Provisional
- The application that will actually be examined
- Must have formal claims
- Formal, structured requirements
So, if the USPTO is not going to examine your application then why file a provisional patent application? First, a provisional patent application allows you to establish a filing date with the USPTO. Since we are a first to file nation the filing date is the most important first step in the patent application process. Second, a provisional application is much less formal and thus the time and expense it takes to prepare a provisional application is less than a non-provisional application.
There can be some risks filing a provisional application though. The single biggest risk is not including information in the original provisional application filing. The written description and drawings must adequately describe the subject matter later claimed in the non-provisional application.
And, of course, cost. It is hard to predict what the cost of filing a provisional patent application will be, but an inventor can do it pro se for as little as $75. With that said a reputable patent attorney will generally charge $1,500 to $3,000 for a provisional application (about 5 to 10 hours of work). I find most inventors are shocked at the fees for a non-provisional application and I generally point out the fee is a function of the amount of work the inventor is willing to contribute. As a patent attorney I am going to draft an application that is sufficiently broad to capture potential infringers and yet specific enough to be defensible. I usually spend 10 to 15 hours just reviewing the final draft.
If you are also developing a brand around your invention, our guide on how to get a trademark explains how to protect your product name alongside your patent. And for a deeper look at what to consider before filing any intellectual property application, see 5 things to know before filing a trademark, which covers the search and filing strategy concepts that apply across IP disciplines.
Frequently Asked Questions
What is the difference between a provisional and non-provisional patent application?
A provisional patent application is an informal filing that establishes a filing date with the USPTO. It is not examined and expires after 12 months. A non-provisional patent application is the formal filing that includes claims, is reviewed by a patent examiner, and can result in an issued patent. You must file a non-provisional application to actually obtain patent protection.
Does a provisional patent application become a patent?
No. A provisional patent application never becomes a patent on its own. It simply reserves your filing date for 12 months. To pursue patent protection, you must file a non-provisional application that references the provisional before the 12-month deadline expires. If you miss that deadline, the provisional filing date is lost.
How long does a provisional patent application last?
A provisional patent application lasts exactly 12 months from the filing date. This deadline cannot be extended. If you do not file a corresponding non-provisional application within that window, the provisional expires and you lose the benefit of the earlier filing date.
When should I file a non-provisional patent application?
If you have a finalized invention and are ready to pursue examination, filing a non-provisional application directly can save time and money. If your invention is still evolving or you need more time to develop it, a provisional application can hold your place in line while you refine the details. A patent attorney can help you evaluate which approach makes sense for your situation.
How much does it cost to file a patent application?
Costs vary based on the complexity of the invention and the type of application. A provisional application typically costs $1,500 to $3,000 with attorney fees, while a non-provisional application is more expensive due to the formal claims, detailed specification, and drawings required. At the Law Office of John R. Nelson, provisional applications start at $3,500 and non-provisional applications start at $4,500.
Have an Invention? Let's Talk Strategy.
As a USPTO Registered Patent Attorney with a chemical engineering background, I help inventors evaluate whether a provisional or non-provisional application is the right first step. Consultations are available by phone, Zoom, or in person at our New Smyrna Beach office.
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About the Author
John R. Nelson, Esq. is a Florida Bar licensed attorney (Bar No. 1002522) and USPTO Registered Patent Attorney (Reg. No. 78645) based in New Smyrna Beach, FL. With a B.S. in Chemical Engineering from the University of Florida and 30+ years of software development experience, he brings a unique technical perspective to patent work.
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