By Tony N. Woolard, USPTO-registered patent attorney (Reg. No. 79,956) and founder of Harborage Law, PLLC, Westbrook, Connecticut. Updated November 2026.
Inventors usually face this choice at the very start: file a low-cost provisional application now, or go straight to the nonprovisional application that can actually become a patent. Neither is always right. Here is how the two compare, what each costs at the USPTO, and the situations in which one makes more sense than the other.
Short answer
A provisional application buys a filing date and "patent pending" status for 12 months at a USPTO fee of $65 to $325, but it is never examined and cannot become a patent on its own. A nonprovisional application is the real application: it is examined, it requires claims, and its government filing, search, and examination fees total $400 for a micro entity, $800 for a small entity, and $2,000 for a large entity (USPTO fee schedule as revised November 1, 2026). File a provisional first when you need a date quickly, the invention is still changing, or cash is tight. File the nonprovisional directly when the invention is final, you want examination to start now, or you would otherwise be paying to prepare the same document twice.
Side-by-side comparison
| Feature | Provisional application | Nonprovisional application |
|---|---|---|
| Legal basis | 35 U.S.C. Section 111(b) | 35 U.S.C. Section 111(a) |
| Examined by the USPTO | No | Yes |
| Claims required | No | Yes, at least one |
| Inventor's oath or declaration | No | Yes |
| Can issue as a patent | No | Yes |
| Life of the application | 12 months, cannot be extended | Pending until it issues or is abandoned |
| Published | No | Generally at 18 months from the earliest filing date |
| "Patent pending" | Yes, for 12 months | Yes, while pending |
| USPTO filing fee (micro / small / large) | $65 / $130 / $325 | $70 / $140 / $350 filing, plus $154 / $308 / $770 search and $176 / $352 / $880 examination |
| Counts against the 20-year term | No, if you file a nonprovisional claiming its benefit | Yes, term runs from this filing date |
| Available for design inventions | No | Yes (as a design application) |
What the fees actually buy
The provisional fee buys a date. For $65, $130, or $325 the USPTO records that you had the invention described in your application on the day you filed it. Nothing else happens at the USPTO until you file the nonprovisional application.
The nonprovisional fees buy examination. The basic filing fee ($70 micro, $140 small, $350 large), the search fee ($154, $308, $770), and the examination fee ($176, $352, $880) are all due at filing, and an examiner will search the prior art and decide whether your claims are allowable. If the application is allowed, an issue fee of $258, $516, or $1,290 is due before the patent grants, and maintenance fees follow at 3.5, 7.5, and 11.5 years. Two surcharges are worth knowing: a $86, $172, or $430 surcharge if the specification is not filed in DOCX format, and a $200 or $400 fee for filing a utility application on paper instead of through Patent Center. The full schedule is in how much does a patent cost.
Why the patent term favors filing a provisional first
A utility patent's term generally ends 20 years from the earliest nonprovisional filing date it claims. The 12 months a provisional application is pending do not count, so the USPTO notes that filing a provisional first and then a nonprovisional application within 12 months can extend the patent term endpoint by as much as 12 months. The exception is conversion: if you convert the provisional into a nonprovisional application under 37 C.F.R. Section 1.53(c)(3) instead of filing a new application that claims its benefit, the term is measured from the provisional filing date, which gives up that year.
When to file a provisional application first
You are about to disclose. A trade show, an investor pitch, a crowdfunding page, or a first sale is days away and you want a filing date before it happens.
The invention is still moving. You expect design changes over the next few months. A provisional now, a second provisional for the improvements, and one nonprovisional application claiming both within 12 months of the first is a common path.
You need time to test the market. The 12 months let you find out whether the product sells before paying for examination.
Cash is the constraint. The USPTO fee is a fraction of the nonprovisional fees, and attorney time to prepare a provisional application is usually lower too, although a provisional written too thinly is the most expensive mistake in patent law because it protects nothing.
When to file the nonprovisional application directly
The invention is final. If you would write the same description either way, a provisional application only delays examination by a year and adds a second filing.
You want the patent as soon as possible. Examination does not begin until a nonprovisional application is on file. Licensing partners and some buyers also take an examined application more seriously.
It is a design. Provisional applications may not be filed for design inventions, so a design application is the only route.
You are claiming priority to a foreign application. A provisional application cannot claim the benefit of an earlier application, domestic or foreign.
The deadline that ties the two together
A provisional application is only useful if a nonprovisional application claiming its benefit under 35 U.S.C. Section 119(e) is filed within 12 months. If that window closes, a petition under 37 C.F.R. Section 1.78 can restore the benefit for a nonprovisional application filed within 14 months, if the delay was unintentional, for a petition fee of $452, $904, or $2,260. The nonprovisional application must share at least one inventor with the provisional, and the claims only get the early date for subject matter the provisional actually described. The step-by-step filing process is in how to file a provisional patent application.
Deciding for your invention
I help inventors and startups in Connecticut and every other state choose between these two paths and then prepare the application, for an affordable flat attorney fee quoted in writing before any work begins, with USPTO fees passed through at cost. The consultation is free and you are under no obligation to proceed; the USPTO's own provisional application guidance is a sound free starting point if you prefer to file yourself. See patent services or book a free consultation.
Frequently asked questions
Is a provisional patent application cheaper than a nonprovisional application?
Yes, at the USPTO. The provisional filing fee is $65, $130, or $325 depending on entity size, while the nonprovisional filing, search, and examination fees together are $400, $800, or $2,000. The nonprovisional fees are still owed later if you want a patent, so the provisional application defers cost rather than removing it.
Can I skip the provisional and file a nonprovisional application directly?
Yes. A provisional application is optional. Many applicants with a finished invention file the nonprovisional application first and never file a provisional.
Does filing a provisional application start the examination clock?
No. Provisional applications are not examined. Examination begins only after a nonprovisional application is filed and reaches an examiner's docket.
Can a nonprovisional application claim the benefit of more than one provisional application?
Yes. A nonprovisional application may claim the benefit of several provisional applications, provided it is filed within 12 months of each one it claims and shares at least one inventor with each.
Which one lets me say "patent pending"?
Both. You may use "patent pending" while either a provisional or a nonprovisional application is pending, and you must stop when the application is abandoned or the patent issues. The rules and penalties are in what patent pending means.
This article is general information, not legal advice, and reading it does not create an attorney-client relationship. USPTO fees change; check the current fee schedule before filing.
