You can file either a provisional patent application or a non-provisional (utility) patent application to protect the way your invention functions, as opposed to how it looks.
Why File a Provisional Patent Application
A provisional application can provide the following benefits:
- patent pending status
- quick time to file
- early filing date
- low cost
A provisional patent application cannot become an issued patent. In the absence of an issued patent, you cannot stop patent infringement. A provisional automatically expires in one year.
Immediately upon filing the provisional application, you can advertise and mark your product as patent pending. This can be a competitive advantage.
It can take as little as a couple of days to prepare and file a provisional application.
The limited amount of time it takes to file a provisional means that you get an earlier filing date. It is important to have an earlier, rather than later, filing date because a patent on the same invention is awarded to the person who first filed their patent application.
The cost of a provisional can be much less than a non-provisional - perhaps 20% of the cost of a non-provisional.
If you are not sure if the market will want to buy your product, you can file a provisional, have patent pending status, and test the marketability of your product. If you find a market for your product, you can then convert your provisional into a non-provisional to obtain a patent.
Why File a Non-Provisional (Utility) Patent Application
A non-provisional application can provide the following benefits:
- patent pending status
- can issue as a patent
- notice of your patent rights
- scope of rights broader than your commercial product
Unlike a provisional, preparing a filing a non-provisional application might take four to six weeks to prepare and file.
Like a provisional, you have patent pending status immediately upon filing a non-provisional application.
Unlike a provisional, a non-provisional application may become an issued patent. It may take two or more years for the patent office to process your non-provisional before a patent is awarded.
However, an issued patent will give notice to the public of your patent rights. A provisional application is kept confidential by the patent office and therefore the public cannot view your provisional.
With an issued patent, you can send cease and desist letters to infringers. You can also sue an infringer for patent infringement and possibly collect damages.
Your issued patent will contain "claims". These are descriptions of the legal boundaries of your patent rights. Your rights may be broader than the commercial product you sell. For example, if your patent covers your chair with four legs, your claims may be broad enough to also cover an infringer whose chair has five legs.