Provisional vs Non-Provisional: Getting Patent Filing Strategy Right

For early-stage startups, the first patent filing can feel like a big leap. One of the most common questions founders face is: Should we start with a provisional application or go straight to a non-provisional?

The answer is less about the document itself, and more about your filing strategy. Let’s break it down.

Why Provisional Applications Exist

A provisional application is a lower-cost, lower-formality way to secure an early filing date. It preserves your ability, for 12 months, to:

• Convert to a non-provisional application that will be examined by the USPTO.

• File corresponding applications abroad.

• Decide not to pursue a patent at all and keep your invention as a trade secret.

• Delay the costs of patent prosecution (arguing with the USPTO to get claims allowed).

That flexibility is why provisionals are so popular with startups.

The Dangerous Temptation of “Quick and Dirty”

Because the USPTO doesn’t impose strict format or content requirements for provisionals, many founders (and even some attorneys) are tempted to file a bare-bones “quick and dirty” document just to get a date on file.

This is a huge mistake.

Here’s why: A provisional application only helps you if it actually enables your invention under 35 U.S.C. § 112. In plain English, it must teach someone skilled in the field how to make and use the invention without undue experimentation.

If it doesn’t, then when you later file your non-provisional, your claims may not get the benefit of the earlier provisional filing date. That’s false comfort—you think you’re protected, but you’re really not.

Why Software Startups Need to Be Extra Careful

Enablement is especially tricky for software-related inventions. Unlike physical devices (say, a new type of gear or machine part), software inventions are often described in functional terms. Without enough detail on how the functions are achieved, your provisional may not truly support the claims you’ll need later.

So while it may feel like you’re buying time with a rough provisional, you’re actually risking the loss of your priority date.

Filing Strategy: Provisional vs Non-Provisional

That brings us back to the key point: the decision between provisional and non-provisional is a filing strategy, not a document strategy.

• Provisional makes sense if you want flexibility—more time to refine your invention, delay costs, or test market interest before committing to the full patent process.

• Non-provisional makes sense if you’re ready to move forward now and want examination (and ultimately patent rights) to begin as soon as possible.

Either way, the golden rule is the same: whatever you file must be fully enabled. A weak provisional is worse than no provisional at all.

The Takeaway for Founders

If you choose to file a provisional, treat it with the same care and rigor as a non-provisional. Don’t cut corners. The benefit you’re paying for—the early filing date—only exists if your application is enabling.

At Idea Clerk, we help founders create strong, fully enabled provisional applications for under $50. That way, you can preserve your options without falling into the trap of false comfort.