Provisional vs. non-provisional patent applications explained

If you’ve ever wondered whether to file a provisional patent or jump straight to a non-provisional, you’re not alone. But the path is not always straightforward for inventors and companies in the US.

The choice affects how quickly you secure protection but also how much you spend upfront, when your rights become enforceable, and how your long-term patent maintenance obligations will look once the patent is granted. 

This guide covers what each application is, how they compare, fees as of 2025, common mistakes, and how to decide which path to take.

‍

TL;DR: What you need to know about provisional vs non-provisional patent applications in 2025
‍

• Provisional patent application: low-cost, no claims required, lasts 12 months, secures early filing date, gives you “patent pending” status.
• Non-provisional patent application: formal USPTO filing with claims, full examination, can lead to a granted patent with a 20-year term.
• Deadlines: you must file a non-provisional within 12 months of your provisional; restoration possible within 14 months if the delay was unintentional.
• Patent application fees: provisional starts at $65 (micro entity); non-provisional core fees total $1,820 (large entity), plus possible claim, size, and surcharge fees.
• Strategy tip: file provisional if your invention is still evolving or you need time to raise funds; file non-provisional when your claims are ready.
• Common mistakes: filing a weak provisional with too little detail, missing deadlines, naming inventors incorrectly, or ignoring new DOCX filing rules.

‍

What is a patent application?

A patent application is a legal request for the exclusive rights to an invention. It includes a detailed description of how the invention works and what makes it new. In the United States, inventors can choose between filing a provisional patent application or a non-provisional patent application. 

Patent application is only successful if the invention fits into one of the eligible categories and meets the standards of novelty, utility, and non-obviousness.

But not everything is eligible for a patent. In the U.S., you can patent:

• Processes: methods of doing something, such as a manufacturing technique or a software process.
• Machines: devices with moving parts or systems that perform a function.
• Articles of manufacture: physical objects or tools that are made by humans.
• Compositions of matter: chemical formulas, compounds, or materials.
• Improvements: new and useful improvements to any of the above categories.
  

What you cannot patent are abstract ideas, laws of nature, mathematical formulas, or things that are purely artistic without practical application.

‍

Why a patent application is critical in business strategy

Beyond the paperwork, filing a patent application gives inventors and businesses strategic advantages:

• Legal protection: Stops others from freely copying or selling your invention.
• Priority: In the U.S. first-to-file system, filing first secures your rights in disputes.
• Commercial leverage :“Patent pending” status can attract investors, partners, and buyers.
• Enforceable rights: Once granted, the patent allows you to act against patent infringers and seek damages.

‍

What is a provisional patent application?

A provisional patent application is a temporary patent filing that allows you to secure an early priority date for your invention. It does not require claims, which means it is faster and simpler to prepare compared to a full non-provisional patent application. 

The patent filing fees are lower, and the application is not examined by the United States Patent and Trademark Office (USPTO). A provisional automatically expires after 12 months, and it never matures into a granted patent on its own.

Benefits: They include the ability to mark your invention as “patent pending,” the chance to delay higher costs, and the opportunity to continue refining the invention. However, if your provisional does not fully describe the invention, you risk losing protection for features that were not disclosed. You have to follow up with a non-provisional application within the 12-month period to keep your priority date.

Limitations: you should keep in mind that you cannot use a provisional for design inventions, it cannot claim priority to another U.S. or foreign application, and once filed, the content cannot be amended except for very minor corrections. That’s why it’s important to prepare a complete and accurate description from the start.

‍

How can you file a provisional patent application?

When you file a provisional patent application, you keep things simpler than a non-provisional but there are still rules to follow. 

Here’s what you need:

• A written description of your invention that meets 35 U.S.C. §112(a).
• Drawings,if they help explain your invention
• The filing fee, paid at the time of submission (late payment triggers a surcharge).

• A cover sheet (USPTO Form PTO/SB/16) that lists:
  
  • all inventors and their residences
  • the title of the invention
  • a correspondence address
  • any U.S. government interest in the invention

A provisional application is simpler than a non-provisional application because it skips many formalities. 

You don’t need to:

• include claims
• oath or declaration
• an information disclosure statement

“The most significant risk with provisional filings is incomplete disclosure. If the invention is not described in sufficient detail, later claims in a non-provisional may not receive the benefit of the earlier date. This could leave room for competitors to file similar applications. Best practice is to treat a provisional with the same rigor as a non-provisional. Include detailed descriptions, drawings, and variations to prevent gaps. Work with professionals who understand the technical and legal requirements so that the provisional builds a strong base for the future application.” - Brian Joslyn, Owner, Joslyn Law Firm

‍

What is a non-provisional patent application?

A non-provisional patent application is the formal submission that the USPTO examines. This is a standard patent application, which is commonly understood as a patent application on global terms.

Once filed, a non-provisional patent application enters the examination process. A patent examiner reviews it for novelty, utility, and non-obviousness. If successful, it results in a granted U.S. patent. The term of a utility patent is 20 years, counted from the patent filing date of the non-provisional, not from the provisional patent filing date.

Because this is the application that can grant enforceable rights, drafting it carefully is essential. As poorly written claims or missing technical detail can weaken the scope of protection.

‍

What you need for a non-provisional patent application

A complete non-provisional includes the right pieces, in the right order. You file:

• transmittal form or letter
• the required fees
• an application data sheet (ADS)
• specification with at least one claim and an abstract
• drawings when necessary
• an executed oath or declaration

For non-provisional patent filings on or after January 17, 2024, you must submit the description, claims, and abstract in DOCX format to avoid an extra fee.

‍

Deadlines and priority rules for patent filing in the US

You can file a non-provisional directly if your invention is ready, or you can file a provisional first if you need extra time to develop your idea.

If you choose to start with a provisional, you must file the non-provisional within 12 months to keep the earlier priority date. If you miss that deadline, the USPTO allows a limited 14-month restoration window if the delay was unintentional and you pay the petition fee. 

Non-provisional applications are typically published 18 months from the earliest priority date. If you do not want your invention published, you can file a non-publication request, but you can’t file the same application abroad if you choose this option.

Keep in mind that the 20-year patent term is always measured from the non-provisional filing date, not from the provisional. Filing a provisional secures your early priority date, but it does not extend the overall lifetime of the patent.

‍

When to file provisional vs. non-provisional patent application
‍

• A provisional patent application makes sense if your invention is still in development, you are looking for investors, or you need extra time before paying higher fees. It provides you with “patent pending” status and allows you to refine your application during the 12-month window.

“Excessive application of PPAs has the potential of making a patent portfolio weak. The flawed version of PPA can be used to make the obscure claims against the potential patent privileges. As a business lawyer, I have observed the ways these misconceptions might interfere with the patent strategy process and I should take the PPAs as the initial step in a larger more comprehensive filing process.” - Nick Heimlich, Owner and Attorney, Nick Heimlich Law
‍

• A non-provisional application is the right choice when you have a finalized invention and clear claims. It begins the USPTO examination process and, if successful, results in a granted patent with enforceable rights.

“A company I worked with had a fully developed software innovation, knew it was core to their business model, and wanted strong protection as quickly as possible. Jumping straight to the non-provisional avoided delays, started the examination process right away, and sent a strong message to competitors that they were serious about locking down their rights. So the choice really depends on the client's goals and stage of development: do they need speed and certainty, or flexibility and time?” - Prakhar Rai, Attorney, My Legal Pal

‍

What mistakes should you avoid in patent applications?

Even small errors in your patent filing can cost you protection or add unnecessary expenses. Here are the most common pitfalls to watch out for:

• Filing a provisional with too little technical detail, which may weaken or destroy your priority rights later.
• Missing the 12-month deadline (or 14-month restoration window), which makes the provisional useless.
• Forgetting to file an application data sheet (ADS) on time for domestic or foreign priority claims.
• Mismanaging a nonpublication request if you later want to file abroad.
• Overlooking the new DOCX requirement for non-provisionals and paying an avoidable surcharge.
• Incorrect or incomplete inventorship listing, which can even render a patent invalid if not corrected properly.

‍

What are the USPTO patent filing fees in 2025?

As of 2025, USPTO fees are as follows:

Provisional application patent filing fee:

• Large entity: $325
• Small entity: $130
• Micro entity: $65

Non-provisional (utility) application fees:

Core fees:

• Filing fee: $320 / $160 / $80
• Search fee: $700 / $350 / $175
• Examination fee: $800 / $400 / $200

Additional fees you may face:

• Excess claim fee (if you file more claims than allowed)
• Application size fee (if your specification and drawings exceed the page limit)

Surcharges:

• Non-electronic filing fee: $400 (large) / $200 (small or micro)
• DOCX surcharge: $400 (large) / $160 (small) / $80 (micro)
• Late surcharge: $160 (large) / $64 (small) / $32 (micro)

‍

Patent maintenance fees begin once your patent has been granted. While the non-provisional filing starts the examination process, ongoing maintenance costs apply only after issuance.

‍

How PatentRenewal.com can help with your patent portfolio

Once your patent is granted, you’ll need to manage regular patent maintenance to keep your rights active, across multiple countries and due dates.

PatentRenewal.com simplifies this with software that automates every patent maintenance, keeps all deadlines on track, and gives you a clear online overview of your entire patent portfolio on a single platform. 

You’ll always know what you’re paying, when patent maintenance is due, and how your budget is being used. 

With full cost transparency and savings of up to 50%, you can focus on innovation while we handle the complexities. Discover how PatentRenewal.com can simplify patent maintenance.

FAQ about provisional and non-provisional patent applications
‍

• What happens if I miss the 12-month deadline?

 If you don’t file a non-provisional within 12 months, the provisional expires. In some cases, you can restore the benefit by filing within 14 months, but only if you petition the USPTO, pay a fee, and explain that the delay was unintentional.

• When do patent maintenance fees start?

Patent maintenance fees (also called patent maintenance fees in the U.S.) start after your patent is granted. In the U.S., they are due at 3.5, 7.5, and 11.5 years from the date the patent was granted.

• Do I need to file a provisional before a non-provisional?

 No, a provisional is optional. You can file a non-provisional first if your invention is ready with full claims. Many inventors use a provisional as a cost-effective placeholder while finalizing details.

• Can I file a provisional patent application without a lawyer?

 Yes, you can file a provisional on your own using USPTO forms and Patent Center. However, if your description is incomplete or unclear, you risk losing protection later. Many inventors choose professional help to make sure the application fully supports future claims.

• How long does a non-provisional patent last?

 A granted U.S. utility patent from a non-provisional application typically lasts 20 years from the non-provisional filing date, as long as you keep up with maintenance fees.

• What’s the cost difference between provisional and non-provisional patent filings? 

As of 2025, a provisional filing fee starts at $65 for micro entities, while the core non-provisional fees (filing, search, and examination) add up to $1,820 for large entities ($910 for small, $455 for micro). Additional claim, size, and surcharge fees may apply.

• What’s the difference between patent filing and patent maintenance?

 Patent filing is the process of submitting your application to secure rights to your invention. Patent maintenance (or maintenance) is the ongoing payment of fees after your patent is granted to keep it legally in force.

• Can I update a provisional patent application after filing?

 No, you cannot add new material once a provisional is filed. You can only make very limited corrections. If you need to include more details, you must file a new provisional.