Written by: Stephano Salani

A U.S. provisional patent application (“Provisional Patent”) is a temporary patent filing administered by the United States Patent and Trademark Office (“USPTO”). It does not itself mature into a patent that could be eventually granted, but it does establish an early priority date for an invention should you wish to later file a regular patent application.

Some of the key takeaways about Provisional Patent to be mindful of include:

1. Provisional Patents expire 12 months from the date of filing. To retain the priority date benefit offered by the Provisional Patent, a regular patent application (“Regular Patent Application”) claiming the priority date must be filed during the 12-month window that the Provisional Patent is pending.

A Regular Patent Application is an application that does get examined and may proceed to become a granted patent. The Regular Patent Application can be a Canadian patent application for a protectable patent in Canada, a U.S. (non-provisional) patent application for a protectable patent in the U.S., or another country’s’ patent application for patent protection in that jurisdiction. Alternatively, you can file an “international patent application” or PCT application claiming the priority date of the Provisional Patent, from which multiple countries may be selected for pursuing patent protection.

2. Upon filing a Provisional Patent, you can claim/indicate “patent pending” status.

Being able to say your invention is “patent pending” has several practical effects beyond law. Amongst other benefits, competitors are put on notice to tread lightly by notifying the public that your invention is “patent pending.” Although patent rights do not exist until grant of the patent, competition may be deterred from investing in the manufacturing or supply chain of a product that will blocked off to them by your future patent.

3. Provisional Patents have no formal requirements regarding substance (i.e., they can be informal).

While you could file something as basic as your own notes on a scratch paper for a Provisional Patent, the substance of the disclosure in the Provisional Patent is important to maintain the priority date benefit for substance in the Regular Patent Application thereafter that claims the priority date benefit from the Provisional Patent.

In other words, the Regular Patent Application likely has written description and enablement requirements for the description of the invention. If the disclosure of the invention in the Provisional Patent (from which the Regular Patent Application claims the priority date) does not disclose the information necessary to meet the written description and enablement requirements of the Regular Patent Application, the priority date benefit will not be conferred due to the discrepancy of disclosure between the two applications. This is why its highly advisable to avoid this potential pitfall by filing a Provisional Patent that is as formal and comprehensive as possible, otherwise the entire benefit of filing a Provisional Patent for the priority date can be squandered.

4. Provisional Patents are not examined by Patent Examiners to ensure they  meet the requirements for patentability.

Because Provisional Patents do not mature to granted patents, they do not need to be examined. This means that once you file a Provisional Patent, you can enjoy “patent pending” status while getting ready to file a Regular Patent Application by seeking funding sources, applying for grants, testing market demand, fine-tuning your design, etc.

5. Provisional Patents are generally less expensive to file than a regular patent application.

Patent filing fees for the USPTO and the Canadian Intellectual Property Office (“CIPO”) depend on the applicant/assignee’s “entity status” (i.e., the size of company and/or the entity’s financial position).

If one was to compare a ‘small entity’ filing of a Provisional Patent to a small entity filing of a Regular Patent Application in either the U.S. or Canada, they would find the Provisional Patent to be significantly less expensive to file:

Minimum Filing Fees to receive a filing receipt	Provisional Patent	Canadian Regular Patent Application	US Regular Patent Application
Small Entity*	$130 USD (178 CAD)†	241.24 CAD	$730 USD (1000 CAD) †
Standard Entity*	$325 USD (445 CAD) †	$595.06 CAD	$2000 USD (2738 CAD) †

* The entity rates posted are effective for 2026. Note that patent offices regularly update their fees.

† The US to CAD conversion rate used is based on the market rate of 1 USD to 1.37 CAD as of March 13, 2026.

6. Provisional Patents don’t get published.

Provisional Patents are not published by the USPTO. So, if you decide to abandon pursuing the patent protection for the invention before filing the Regular Patent Application, your disclosure in the Provisional Patent will not go public and you can retain the confidentiality of the invention. However, its important to note that if you decide to file the Regular Patent Application (which does get published) claiming the priority date benefit of the Provisional Patent, the entire prosecution file (known as the “file wrapper”) generally becomes public, and the Provisional Patent will typically be included in the file wrapper.

A Provisional Patent is a strategic legal instrument that allows inventors to establish an early patent priority date with relatively low cost and minimal formal requirements. It is frequently used when technology is still evolving, when public disclosure is anticipated, or when commercial development is underway. Compared with filing a Regular Patent Application immediately, a Provisional Patent provides time, flexibility, and cost management. Compared with relying solely on a Non-Disclosure Agreement (“NDA”), it offers something NDAs cannot: a place in the patent priority system.

For innovators operating in fast-moving technological fields, Provisional Patents applications  serve as a critical bridge between invention development and formal patent protection.

Provisional Patent FAQs

When are Provisional Patents typically used?

Provisional Patents are commonly used during early stages of technology development when an invention has been conceptualized or reduced to practice, but further refinement or commercialization efforts are ongoing.

Typical circumstances include:

• Early-stage innovation: when an inventor has developed a workable concept but expects design improvements over the next year.
• Imminent public disclosure: when an inventor intends to present the invention at a conference, publish a paper, demonstrate a prototype, or pitch to investors.
• Start-up formation and fundraising: when a startup wishes to secure a filing date before discussing technology with potential investors or partners.
• Competitive technology sectors: in industries such as software, artificial intelligence, electronics, and biotechnology where rapid innovation makes priority dates strategically important.

Does Canada have a Provisional Patent equivalent?

The short answer is no.

While it is possible to mimic some of the benefits of a Provisional Patent with a Regular Patent Application in Canada, the practical effects of the Provisional Patent are not “one-to-one” with this kind of work around. For example, it may be possible to file a Canadian Regular Patent Application and never request examination to obtain “patent pending” status and secure a priority date without having to undergo examination of the invention by a Patent Examiner. However, as mentioned above, the Canadian Regular Patent Application will cost more than the Provisional Patent and will be published unless the Canadian Regular Patent Application is withdrawn before publication.

I have an NDA signed by everyone I disclose the invention to; do I still need a Provisional Patent?

Inventors sometimes rely on NDAs when discussing inventions with third parties. However, NDAs and Provisional Patents applications serve fundamentally different legal functions.

An NDA is a contractual obligation of confidentiality between specific parties, so its protection is limited in that (a) it only binds the parties to the agreement, (b) it does not prevent independent development by others, and (c) it does not create intellectual property rights in the invention. So, while an NDA can prevent a counterparty from disclosing confidential information, it does not secure patent priority.

If an invention is accidentally publicly disclosed, the inventor may lose foreign patent rights immediately and trigger statutory bars in some jurisdictions based on lack of novelty. A Provisional Patent filing provides protection by establishing a patent filing date before disclosure occurs regardless of whether an NDA has been signed by the disclosing party.

Moreover, many investors, manufacturers, and corporate partners refuse to sign NDAs at early stages due to exposure risks. Filing a Provisional Patent application allows an inventor to discuss the invention more freely while maintaining patent-pending status.

Nevertheless, the options of filing a Provisional Patent and executing an NDA are not mutually exclusive. In practice, NDAs and Provisional Patent applications are often used in tandem rather than as substitutes.

What if the design isn’t complete and I need to make modifications?

A Provisional Patent filing may include your current version of the invention, regardless of whether it is merely conceptual or has been prototyped.

If more versions or iterations are made before the filing of the Regular Patent Application, they may (a) be covered by their own subsequent Provisional Patents which can all be claimed by the Regular Patent Application or (b) be included in the filing of the Regular Patent Application. The decision to file subsequent Provisional Patents as in (a) indicated above or wait for the filing of the Regular Patent Application as in (b) indicated above is mainly based on how important it is to obtain a priority date for each successive version/iteration of the invention.

Why is there such a wide range of fees for preparing and filing a Provisional Patent?

As mentioned above, Provisional Patents have no formal requirements regarding substance and can be as basic as your own notes on a scratch paper.

Some online companies capitalize on this fact by automatically filling out a Provisional Patent application directly based on information you provide on a form without requiring review of the substance of the application by a patent lawyer. As such, the company does not have to incur the legal costs of the lawyer’s drafting or review time and is able to offer a very competitive rate.

However, as the adage goes, “you get what you pay for.” Remember that the substance of the disclosure in the Provisional Patent is important to maintain the priority date benefit for substance in the Regular Patent Application that is claiming the priority date benefit. So, if you later decide to file a Regular Patent Application claiming the priority date benefit from the Provisional Patent and the disclosure of the invention in the Provisional Patent is not sufficient to meet the written description requirements for the Regular Patent Application, the priority date benefit will not be provided to the discrepancy of disclosure between the two applications.

Need assistance building your patent portfolio? Feel free to contact us to schedule a call with a patent professional. This content is for informational use only, does not constitute legal or professional advice, and does not establish a lawyer-client relationship. To obtain such advice, please communicate with our offices directly.