Provisional or Non-Provisional Patent Application?

Published April 2021 | Updated September 2026
By John R. Nelson, Esq.

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 12 months after filing
• No examination made by the USPTO
• Less formal, fewer requirements

Non-Provisional Application

• Must specifically claim the benefit of the provisional in the Application Data Sheet on time—within 4 months of filing the non-provisional or 16 months from the provisional's filing date, whichever is later—or the earlier date can be lost unless a petition (with fee) showing the delay was unintentional is granted
• 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 the U.S. is a first-inventor-to-file country, and most foreign countries bar patents after any public disclosure, getting an early filing date is critical. 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 a USPTO filing fee of $65 (micro entity), $130 (small entity), or $325 (large entity). With that said, attorney fees for a well-prepared provisional commonly run several thousand dollars; at our office, provisional applications start at $3,500, plus USPTO fees and any drawing costs. 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 aim to draft an application broad enough to cover similar inventions yet specific enough to be defensible, although scope and validity are ultimately decided by the USPTO and courts. 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.

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