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Provisional Patents

1.	Introduction to Provisional Applications for Patent
2.	What is a Provisional Application for Patent?
3.	Benefits of Provisional Applications for Patent
4.	What can be patented?
5.	Patent Searches
6.	Patent Priority and Provisional Applications for Patent
7.	Filing Requirements for Provisional Applications for Patent
8.	Turning Your Provisional Application for Patent into a Full Patent

4. What can be patented?

Under U.S. patent law, any person who "invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent." In general, this means you must satisfy the following four requirements to qualify for a patent:

The subject matter must be patentable.
The invention must be novel.
The invention must have some utility or usefulness.
The invention must not be obvious.

1. Patentable subject matter

A patent cannot cover an idea. Instead, the idea must be shown in one or more of the following:

A process or method (such as a new way to manufacture concrete)
A machine (something with moving parts or circuitry)
A manufactured article (such as a tool or another object that accomplishes a result with no moving parts, such as a pencil)
A new composition (such as a new pharmaceutical)

Even if the invention falls into one of the four above categories, there are certain subject matters that cannot be patented. These include mathematical formulas, naturally-occurring substances, laws of nature and processes done entirely with the human body (such as a technique for shooting a free throw in basketball).

2. What can be patented?

Novelty simply means the invention must be new. That is, it must differ from knowledge already existing in the public domain (referred to as "prior art"). Patent law defines prior art in several ways, including:

Anything described in a publication:

before the date you made the invention or

one year before you file your patent application.

Anything in public use or on sale in the U.S.:

before the date you made the invention or

one year before you file the patent application.

Prior patents that were issued:

before the date you made the invention or

one year before you file the patent application.

Please be aware that if you're not careful, even the original inventor could be barred from filing a patent application. The reason is the one-year rule applies to everyone, including the original inventor. For example, if you publish your invention in a magazine or begin selling it, you must file a patent application within one year from the date it was published or first sold. Otherwise, no one (not even the inventor) will be able to obtain a patent for the invention.

Because a provisional patent application is not published, it preserves the confidentiality of the invention and does not start the one-year rule by itself. For example, although you would not get the benefit of the earlier filing date, there is no restriction against filing a full patent application two years after filing the provisional application. Again, the invention must not have been disclosed in a publication or sold.

3. Utility of a patent

Utility means an invention must physically accomplish something. If an invention works, or if it produces a result - even in theory - then it has utility. In practice, very few inventions fail the utility test. Only when the underlying logic is seriously flawed (for example, a perpetual motion machine) could a patent be challenged on utility. In addition, illegal or highly dangerous products may also be rejected by the U.S. Patent Office under this requirement.

Please be aware that design patents do not need to satisfy the utility requirement.

4. Non-obviousness of a patent

Non-obviousness means people skilled in the invention's field (as opposed to the average person) would not consider the invention obvious. For example, an invention made by substituting one color for another or by combining two existing inventions in a logical manner, would typically not be patentable.

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