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    A provisional secures only what it describes

    Write a provisional as if your later claims must be found in it, because they must.

    Lesson 8 of 9 · 4 min

    An hourglass drawn in fine lavender lines standing on a block of obsidian.

    What a provisional is

    A provisional application is a placeholder that can give a later application an earlier date. It needs a specification that meets section 112(a), which is the requirement to describe and enable the invention, plus any necessary drawing. It needs no claim and no oath, gets no examination, and lapses at 12 months (35 U.S.C. § 111; MPEP § 201).

    The light formalities mislead people. The form is easy, but the content standard is the same one a full application must meet. A provisional cannot be amended except to comply with the rules (37 C.F.R. § 1.53), and no information disclosure statement may be filed in it (37 C.F.R. § 1.51). It also does not start the 20-year term (35 U.S.C. § 154).

    What it takes to get the date

    To claim benefit of a provisional, you need a later filing within 12 months, a common inventor, support under section 112(a), and a specific reference to the provisional (35 U.S.C. § 119; MPEP § 211).

    Support is where it goes wrong. In New Railhead, lost support meant a lost date and an on-sale bar, the rule that can turn an earlier sale against your own patent (quoted in MPEP § 211). The later claims get the early date only if the provisional actually taught them.

    The 12 months, stated carefully

    The provisional's own life is fixed (USPTO provisional page). What can be restored is the window for claiming benefit, up to 14 months, on a petition showing unintentional delay (37 C.F.R. § 1.78). In our judgment, do not plan around this, because restoration in months 13 and 14 may not be honored abroad.

    The common failures

    These are the usual ways to lose the date:

    In our judgment, the safest way to write a provisional is as close to a full application as you can manage. If your invention changes after filing, plan a new filing that describes the change, not an edit.

    Timeless wisdom

    A provisional protects only what it describes. It needs a section 112(a) specification and any necessary drawing, gets no examination, and lapses at 12 months (35 U.S.C. § 111). Benefit needs a later filing within 12 months, a common inventor, support and a specific reference (35 U.S.C. § 119; MPEP § 211). The benefit window can be restored to 14 months on an unintentional-delay petition (37 C.F.R. § 1.78), but a provisional does not start the 20-year term (35 U.S.C. § 154).

    What's current

    As of November 6, 2026

    As of November 6, 2026, the filing fee is $325 / $130 / $65 and the restoration petition $2,260 / $904 / $452, undiscounted / small / micro (fee schedule).

    Enanta v. Pfizer (June 23, 2026) shows how little it takes: a provisional reciting C2-C12 did not support a C1-C12 claim ("C2 is simply different from C1") (opinion).

    Dental Monitoring v. Align, No. 25-1752 (Aug. 10, 2026, precedential), cuts the other way: a prior art reference gets its provisional's date under AIA 102(d)(2) only if the provisional supports at least one of the reference's claims (opinion). The opinion controls over older text in MPEP § 2136.03. We did not check later rehearing status. This is a different case from the nonprecedential section 101 decision, No. 24-2270.

    Key takeaways

    • A later claim gets the provisional's date only if the provisional taught it.
    • A provisional cannot be amended to add what you left out.
    • The provisional's life is fixed, and only the benefit window can be restored.
    • A provisional does not start the 20-year term.

    Check your understanding

    1. Your provisional describes a sensor with three to five electrodes. Your nonprovisional, filed 11 months later, claims two to five electrodes, and a competitor's product appeared in between. What is the concern?
    2. You missed month 12 by three weeks, unintentionally. Which statement is accurate?

    Track your 12-month deadline

    Sources

    1. 35 U.S.C. § 111
    2. MPEP § 201
    3. 37 C.F.R. § 1.53
    4. 37 C.F.R. § 1.51
    5. 35 U.S.C. § 154
    6. 35 U.S.C. § 119
    7. MPEP § 211 (quoting New Railhead)
    8. USPTO provisional application page
    9. 37 C.F.R. § 1.78
    10. 37 C.F.R. § 1.76
    11. 35 U.S.C. § 172
    12. USPTO fee schedule
    13. Enanta v. Pfizer (Fed. Cir. June 23, 2026)
    14. Dental Monitoring v. Align, No. 25-1752 (Fed. Cir. Aug. 10, 2026) (precedential)
    15. MPEP § 2136.03
    16. Dental Monitoring v. Align, No. 24-2270 (Fed. Cir. July 7, 2026) (nonprecedential)

    The Academy is general education, not legal advice, and reading it doesn't create an attorney-client relationship. Patent law and fees change, so check the linked sources and have a registered patent attorney or agent review your situation before you file. Obsidyan sells patent software, including AI drafting tools, so weigh what these lessons say about AI tools with that in mind.

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