Can you refile a provisional patent application? Options after your provisional patent application expiration.

I often get questions about what are the options if your provisional patent application is going to expire (remember they only last for 12 months) and you are not ready to commit to a full non-provisional patent application.  Can you refile a provisional patent application?

The answer is "it depends".   It depends on if you have had a public disclosure or offer for sale.  Patent attorneys may call this a "102 date" since this triggers certain patent laws and you may have done something to block yourself from getting  patent.

If your provisional patent application is about to expire you have several options:

(1) If your idea is still secret and has not been published (i.e. no "102 date") then you should have the option to re-file another provisional patent application.  In theory you could do this over and over again as long as your invention stays secret.  Of course this is very risky now that the United States is a "first to file" country so someone else may invent the same or similar thing and if they get their patent filed before you, you may lose out on your chance to patent it.

(2) If your idea is no longer secret since you may have told people about it, published it, or offered it for sale (i.e. you created a "102 date") you may be able to still file a provisional patent application as long as its within 1-year from that 102 date.

(3) If your 102 date was more than a year ago, you may be out of luck and the best you could do is try to come up with an improvement or tweak to your invention and file a patent on that.

(4) You can file a full non-provisional patent application within 12 months from the date your filed your provisional application.  Sometimes if people have a 102 date after they filed their provisional this is the best option for them.

(5) You can do nothing and let your patent expire.  Lots of great products do well in the market without any patent protection.


*Each time you refile your provisional patent application you will have to repay the USPTO fee (currently $65 for most inventors)

NOTE:  These options will only work for United States patent protection as each country has their own rules regarding public use or public disclosure.  In some places like Europe you must get your patent filed first before you publicly disclose your idea.


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