Provisional Filings – A False Sense of Security? - Stratford Group Ltd

Provisional patent filings are often seen as a low-cost way to protect innovation early in the development process. But without a complete disclosure and a strategic plan to follow up with a full application, you risk losing key protections — and valuable time. Avoid “file and forget” thinking and treat provisionals as a tool, not a solution.

Provisional Applications: A Popular First Step…

Picture this...your team has developed an innovative solution or significantly improved your product with a novel process. The approach has been tested and will be implemented in the next product release. Everyone agrees that the solution has never been used before and, as a significant differentiator, ought to be protected by a patent.

So, the solution is quickly documented and a provisional application is filed. It’s affordable (~$1000) and does not require a formal patent claim or patent agent! There’s a sense of relief: the idea feels protected, and you can forget about the patenting process for a year.

But this is where many innovation driven companies -especially those moving quickly – risk falling into the “file and forget it” trap.

A Year Later: What's Really Covered?

Twelve months later, it’s time to file the formal application. You ask your patent agent to draft a conventional application from the few pages you originally filed with the patent office.  Upon their review, they discover that that 15 more pages must be added to properly describe the invention. These details are critical — without them, the application cannot support the breadth or specificity of the desired claims.

Only claims that are FULLY supported by the original provisional application will benefit from its original filing date.

Any claims based on new material will be treated as if they were filed much later — potentially after a competing product has launched or public disclosure has occurred.

Neglecting to disclose certain details — even if they seem minor — can mean the difference between gaining protection or losing it altogether.

The Hidden Risk: A False Sense of Security

Provisionals can lull teams into believing an idea is “safe” simply because it has been filed. Unless a "conventional-ready" provisional filing is created, a provisional may not follow the patent structure. This inevitably results in an incomplete description. Whether it is missing key components, enablement, and/or details - this all has negative repercussions down the road.

Along with delay in priority for the new matter, the false sense of security may lead inventor to publicly disclose matter that was not included and therefore not protected. Further, provisional applications are not examined, and they do not grant any enforceable rights. They expire after 12 months and must be converted into a full application to maintain any priority claim.

Without a plan to review, update, and finalize the application within that timeframe, innovators risk letting critical details slip through the cracks — or missing the window entirely.

A Provisional Isn't Always the Right Move

In some cases, skipping the provisional and filing a non-provisional (or conventional) patent application is the more strategic choice. When an innovation has been fully validated, tested, or is approaching launch, waiting a year may introduce unnecessary risk.

While provisionals offer a helpful runway for early-stage ideas or when additional data is needed, they should not be used simply to defer decisions or cut costs. Filing a provisional for convenience can lead to lost value later — especially if it’s never revisited.

Best Practices for Strategic Filing

To ensure that a provisional application supports long-term IP goals, it should be treated with the same rigour as a non-provisional. Some key recommendations include:

• • Work with an IP expert upfront to ensure the description is detailed and enabling. The act of drafting claims, even if not required in the provisional, forces clarity and completeness.
  • Use provisionals strategically, not reactively. They’re valuable when additional testing is needed, or when managing disclosure timelines around partnerships, pitches, or funding rounds.
    You may decide that a provisional is the right move — and in many cases it can be — but that decision should be based on strategy, not speed or convenience.
  • Provisionals can be especially useful when development is ongoing but there is a need to make a public disclosure about what has already been developed. In those cases, it’s essential that the patent agent take the time to write at least one claim set to ensure the provisional has sufficient subject matter to stand on its own.
  • Avoid the “file and forget” mindset. Provisional filings should trigger a plan for what comes next — not serve as a placeholder with no follow-up.

If you think your invention is worth patenting, it’s worth doing it right from the start. Allocating time and resources up front to work with a patent expert to prepare and file a comprehensive, well-supported application — even at the provisional stage — helps secure the earliest possible filing date and long-term protection. Ideally, your provisional application should be as close to a conventional application as possible.

Final Thoughts

Provisional applications have their place in a thoughtful IP strategy, but only when approached deliberately. Filing one quickly without sufficient disclosure or a plan to follow through can create more risk than protection.

Innovation deserves protection that matches its value — and that starts with getting the first step right.

Better safe than sorry!

Not sure how to move forward with your provisional or idea? Schedule a free discovery call with one of our IP advisors to get practical, strategic insight into your next steps.

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[FROM THE ARCHIVES: This article was originally published in 2011. It has been updated with new content.].