By Tony N. Woolard, USPTO-registered patent attorney and founder of Harborage Law, PLLC. Updated October 2026.
Many inventors first hear the words "provisional patent" when they are deciding how to protect a new product. Here is what a provisional patent application is, what it does and does not do, and what it costs at the USPTO.
Short answer
A provisional patent application is a lower-cost first filing with the USPTO that establishes an official filing date for your invention and lets you use the words "Patent Pending" for 12 months. It is not examined, it does not require formal patent claims, and it cannot become a patent by itself. To keep the benefit of its filing date, you must file a nonprovisional application within 12 months (35 U.S.C. Sections 111(b) and 119(e)). The USPTO filing fee is $65 for a micro entity, $130 for a small entity, and $325 for a large entity (as of October 2026).
What a provisional application does
The USPTO explains that a provisional application establishes an early effective filing date for a later nonprovisional application, allows the term "Patent Pending" to be applied in connection with the description of the invention, and begins the Paris Convention priority year for foreign filings. It was designed, in the USPTO's words, to provide a lower-cost first patent filing in the United States.
What it does not do
It is not examined. The USPTO states that provisional applications are not examined on their merits.
It cannot issue as a patent on its own. The USPTO states that a provisional application cannot result in a U.S. patent unless, within 12 months, a nonprovisional application is filed that claims its benefit or a petition is granted to convert it.
It cannot be extended. The 12-month pendency period cannot be extended, and the statute provides that a provisional application is regarded as abandoned 12 months after its filing date (35 U.S.C. Section 111(b)(5)).
It cannot be used for designs. The USPTO states that provisional applications may not be filed for design inventions.
It is not published. Provisional applications are excluded from the USPTO's 18-month publication (35 U.S.C. Section 122(b)(2)(A)(iii)).
What a provisional application must contain
Under 35 U.S.C. Section 111(b), a provisional application must include a specification as prescribed by Section 112(a) and any drawing as prescribed by Section 113. A claim is not required. The USPTO adds that a filing date is accorded only when the application contains a written description of the invention that complies with Section 112(a), and that a drawing necessary to understand the invention cannot be added later because of the prohibition against new matter. The application must also name all inventors and include a cover sheet and the filing fee.
This is the part that matters most. A provisional application only protects what it actually describes. A thin description filed in a hurry may not support the claims you later need, and the USPTO recommends that the disclosure be as complete as possible.
Why the filing date matters
Under Section 119(e), a nonprovisional application filed within 12 months of the provisional, by the same inventor or inventors, is treated as though it were filed on the provisional's filing date for the invention disclosed in the provisional. The USPTO also notes that by filing a provisional application first and then filing the corresponding nonprovisional application within the 12-month period, a patent term endpoint may be extended by as much as 12 months, because the 20-year term runs from the nonprovisional filing date (35 U.S.C. Section 154(a)(2)).
Costs (as of October 2026)
USPTO provisional application filing fee: $325 (large entity), $130 (small entity), $65 (micro entity)
USPTO nonprovisional utility application fees (basic filing, search, and examination combined): $2,000 (large entity), $730 (small entity filing electronically), $400 (micro entity)
Government fees are set by the USPTO and may change. The amounts above are from the USPTO fee schedule as revised August 14, 2026; please confirm the current fee on uspto.gov before filing. Attorney fees are separate and quoted as a flat fee in writing before any work begins.
Frequently asked questions
Is a "provisional patent" the same as a patent?
No. There is no such thing as a provisional patent. A provisional application is a placeholder filing that is never examined and never issues as a patent. Only a nonprovisional application can become a patent.
Can I say "patent pending" after filing a provisional application?
Yes. The USPTO states that a provisional application permits authorized use of the "Patent Pending" notice for 12 months in connection with the description of the invention. Our article on what patent pending means covers the rules.
What happens if I miss the 12-month deadline?
The provisional application is regarded as abandoned and cannot be revived after the 12-month period (35 U.S.C. Section 111(b)(5)). The USPTO notes that a nonprovisional application filed more than 12 months but within 14 months after the provisional's filing date may have the benefit restored by a grantable petition stating that the delay was unintentional, with a petition fee.
Can I file a provisional application after I have already shown or sold my invention?
The USPTO explains that, because of the one-year grace period in 35 U.S.C. Section 102(b)(1), a provisional application can be filed up to 12 months after an inventor's own public disclosure, but a disclosure more than one year before the filing date would preclude patenting in the United States, and a pre-filing disclosure may preclude patenting in foreign countries.
Need help with a provisional application?
Harborage Law prepares provisional and nonprovisional patent applications for inventors in every state, with flat fees quoted in writing before any work begins. You can learn about our patent services or book a free consultation.
This article is general information, not legal advice, and reading it does not create an attorney-client relationship.
