• Jeff Streets

What is the Difference Between a "Patent Application" and a "Patent"?

Updated: Jul 31

Alternative Title: Don't embarrass yourself on Shark Tank by talking about your "provisional patent"!


Patent Application

A patent application is a document that has been filed at the United States Patent and Trademark Office (USPTO) and describes your invention. When a US patent application is filed at the USPTO, the USPTO will assign an application serial number and official filing date to the application. If the US patent application is filed on the USPTO's online filing system, either the Electronic Filing System (EFS-Web) or Patent Center, the application serial number and filing date are automatically generated within seconds after your patent application has been uploaded and submitted. At that very moment, the patent application is considered to be "pending" and the Applicant of the patent application may begin applying the term "Patent Pending" to products and services that are directed to the same subject matter as the patent application. The status of the patent application is "pending" until the patent application is either abandoned or becomes an issued patent.


Several days after filing a patent application, the USPTO will mail a Filing Receipt that confirms lots of information about the patent application that they received. In particular, the Filing Receipt will identify the inventors that were named at the time of filing, the Applicant (if different than the inventors), the title of the patent application, the serial number assigned to the patent application, the filing date when the patent application was received, and any correspondence address that is associated with the patent application.


It is possible to identify a patent application by the format of the serial number. The serial number has the format of XX/YYY,YYY. The first two digits XX are the series code and the next six digits YYY,YYY are the application number. For example, a patent application filed on March 17, 2022 was assigned application serial number 17/697,165. Patent application serial numbers are assigned in numerical order, so patent applications having lower serial numbers were filed before patent application having higher serial numbers.


On occasion it is important to remember that the Offices of the USPTO are located in Alexandria, Virginia, which is in the Eastern Time Zone. Therefore, the filing date of a patent application that is filed online is determined from the viewpoint of the Eastern Time Zone. For example, if you submit a patent application online on December 31 of one year at 11:30 pm in the Central Time Zone, the patent application will be given a filing date of January 1 of the next year (i.e., the next day) because it was already January 1 on the East Coast when the patent application was submitted. Alternatively, you could file a patent application via Priority Mail Express® offered by the United States Postal Service at 11:30 pm on December 31 in the Central Time Zone and still receive a filing date of December 31 so long as the United States Postal Service marks your envelope with December 31 as the "date accepted" on the Priority Mail Express label. This benefit is only available using Priority Mail Express® offered by the United States Postal Service (USPS) because the Patent Statute (35 USC 21) allows the Director of the USPTO to make rules governing the filing date and this is the rule that was established (37 CFR 1.6(a)(2) and 37 CFR 1.10).


Patent

A patent application may or may not issue as a patent following a process of examination. There are numerous requirements that must be met before a US patent will be granted. A limited list of the patentability requirements includes a written description, an enabling disclosure, and claims directed to an invention that is new, useful and nonobvious to a person having an ordinary level of skill in the art on the effective filing date of the associated patent application. Each of these requirements are worthy of separate articles and are matters of focus for patent attorneys throughout their careers.

A US patent will not issue without payment of an issue fee. Even if the invention that is disclosed and claimed in a patent application meets all of the patentability requirements, a patent will not issue until the issue fee has been paid. A US utility patent number will have a format of XX,XXX,XXX. For example, the USPTO issued US Patent 10,000,000 on June 19, 2019. By contrast, a US design patent will begin with the letter "D", a plant patent will begin with the letters "PP" and a reissue patent will begin with "RE." These patent number formats are described further at the following link: https://www.uspto.gov/patents/apply/applying-online/patent-number Furthermore, a patent number may include a "Kind Code" after the numerical portion. A "Kind Code" includes a letter, and often a number, to identify the kind of patent document and/or the level of publication. For example, the kind code "B1" indicates that the patent was published with on previously published pre-grant publication, whereas the kind code "B2" indicates that the patent was published with a previously published pre-grant publication. Therefore, if a US patent issues with a "B2" kind code, then there is a corresponding publication of the pending patent application. For assistance identifying the meaning of a particular USPTO Kind Code, use the following link: https://www.uspto.gov/learning-and-resources/support-centers/electronic-business-center/kind-codes-included-uspto-patent


So, What is Wrong with Saying "Provisional Patent"?

There is no such thing as a "provisional patent". An inventor may file a "provisional patent application", but that provisional patent application expires exactly one year after filing, will never be examined, and can never issue as a patent. You may then wonder what value is there in filing a provisional patent application. The simple answer is that filing a provisional patent application is evidence that you filed a particular patent application on a particular filing date. In order to take advantage of a pending provisional patent application, a nonprovisional patent application must be filed with a priority claim to the provisional patent application before the provisional patent application expires. A successful priority claim to the provisional patent application will give the nonprovisional patent application an "effective filing date" that is the filing date of the pending provisional patent application.


So, please, don't refer to a "provisional patent." While people may understand that you are referring to a "provisional patent application", referring to a "provisional patent" is inaccurate and may give others the impression that you don't really understand whether or not you have a patent. Using the appropriate terminology will gain you some credibility with many, including the "Sharks" on Shark Tank.


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