Should I File a Provisional Patent Application?

Provisional patents applications are not perfect for every situation.  They have their advantages and disadvantages.  Provisional patents applications can be used to protect new ideas such as:

  • Methods (including methods performed by software -software patents)
  • Machines that perform a task
  • Compositions of matter (ie: objects, tools, widgets, etc.)
  • Business methods that are performed by a computer
  • Genetically modified material (plants, animals, bacteria, etc.) - USA only

Important:  Your idea must also be new and not-obvious and you must be able to explain exactly how to make and use it (ie: you can't get a patent on a flying car unless you can explain exactly how to make it and how it will work).

Patents do not protect things like:

  • Software code (you would use a copyright for that but you can get a patent on the unique methods that code uses)
  • Abstract/intangible ideas (ie: methods of making money by buying a stock at a low price and selling at a high price)
  • Laws of nature
  • Things that are naturally occurring (ie: plants, wild type DNA, etc.)
  • Any idea that has already been described or invented before (your idea must be brand new)

If you reviewed the lists above and think your new invention is still eligible for a patent then you probably can file a patent.  The next question (and a more important one in my opinion) is should you file a provisional patent.  This is a business decision as well as a legal one.  There are lots of good business reasons to file a patent, including:

  • Stopping your competition from making and selling your invention
  • Using your patent as an asset to raise money from investors
  • Licensing or selling your patent rights for income

Suggested Next Reading:  How Much Does it Cost to Patent an Idea?

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