Beware of Provisional Patents aka Incomplete Patents

An ordinary patent application that is filed with the United States Patent and Trademark Office (USPTO) is referred to as a “non-provisional” application to distinguish it from a “provisional” application. A “provisional” patent application is commonly referred to as an incomplete application. The provisional application was created to help eliminate a disadvantage to U.S. inventors is filing patent applications when compared to non U.S. inventors filing abroad. A provisional application is essentially a patent application whose purpose is to establish a filing date and which must be completed within a year of its filing. However, many inventors believe that they can file an incomplete application without many of the formalities of the complete application and still obtain the benifit of the earlier filing date when filing their complete applicaiton. The non-provisional application is a complete patent application, and must include a specification, a claim or claims, any necessary drawings, an oath or declaration, and the patent application filing fee. A complete patent application is only entitled to the benifit of an earlier filed incomplete patent if the earlier filed patent discloses what is later claimed. Therefore, when drafting a provisional patent application consideration must be must be given to the formalities of the complete or non-provisional application.


The specification is a written description of the invention and is required to be sufficiently “full, clear, concise, and exact” so as to enable a person skilled in the field to which the invention belongs to make and use the invention. The specification is required to describe the exact invention for which a patent is sought in a way that distinguishes it from existing inventions. It also must completely describe a specific embodiment of the invention, detailing the specific parts and how they go together, and the best mode of carrying out the invention. The USPTO requires the following sections in a specification:

  • the title of the invention;
  • a cross-reference to related applications, if any;
  • a statement of federally sponsored research and development, if any;
  • a reference to a DNA sequence listing, computer program, table, or other information submitted on a compact disc;
  • a description of the background of the invention;
  • a brief summary of the invention;
  • a brief description of the drawings, if any;
  • a detailed description of the invention;
  • the claim or claims;
  • an abstract of the disclosure; and
  • a DNA sequence listing, if applicable.


The patent claims are the specific aspects of the invention for which patent protection is sought and define the scope of protection provided by an issued patent. Multiple claims may be included within the same application, and may be independent or may be dependent upon other claims.


Drawings must be included in a patent application whenever they are necessary to understand the invention. Drawings are generally necessary in all applications except those for compositions of matter or processes and may be included in applications for other types of inventions if they are helpful. The drawings that are included in the application specification must show every feature of the invention as specified in the claims. The USPTO’s requirements and specifications for patent application drawings are lengthy and detailed.


The oath or declaration is a statement by the inventor that he or she is the original and first inventor of the invention for which patent protection is sought, along with other miscellaneous statements. An oath must be sworn to before a notary public; however, a declaration, which may be given in lieu of an oath, need not be notarized. The oath or declaration must be signed by the inventor or other person who is legally authorized to make an application on the inventor’s behalf.


Patent filing fees consist of a basic fee and additional fees. The basic fee covers up to 20 claims, not more than three of which may be independent claims. Additional fees are required for each independent claim in excess of three and for each claim in excess of 20 total claims. Small entities such as independent inventors, a small business, or non-profit organization are entitled to a 50 percent reduction in the filing fee if they successfully file for small-entity status.

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