Can Provisional Patent Applications (PPA) Be Refiled?

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A Provisional Patent Application (PPA) is a document that helps safeguard a new invention from being copied for a period of 12 months, till a formal patent application is filed. It gives the inventor time to refine the invention or test its market potential before filing a patent. Once a PPA is filed, the inventor receives a ‘patent pending’ application. It is possible to refile a patent application but not recommended. Below we explore the risks associated with refiling a patent application.  

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Options Available Upon PPA Expiration 

As an applicant who has filed for a PPA, you have three options available when it is about to expire: 

  1. Not filing any further applications once the PPA expires.  
  2. Filing a second PPA and losing the advantage of the priority filing date. 
  3. Filing a non-provisional patent application that claims priority to the PPAs filing date.  

Option 2, while available to the applicant is likely to jeopardize the probability of securing a patent later and is thus not advisable. 

Risks Associated With Re-Filing PPA 

Here is why you should not refile a PPA: 

  1. Chances of Losing Patent Rights 
    The United States Patent and Trademark Office (USPTO) recognizes the  First to File patent system (FTF) implemented in 2013. Under the new system, the applicant who first files the patent receives priority. When you file for a second provisional patent application, you lose the earlier priority date of the first PPA. This could be harmful under the FTF system because: 
    • If a 3rd party files a non-provisional patent application before your second PPA, they will be prioritized for a patent grant, since technically they filed first. 
    • In case the second PPA does not disclose the full details of the invention and a 3rd party files a patent application after your submission, they will still have superior rights. This is because a filing date is granted only once the subject matter is fully revealed in the application.  
    • In the event that a 3rd party makes a full public disclosure of the invention before you file the second PPA, it will establish prior art and prevent you from receiving a patent for the invention.  
  2. Increased Expense 
    When filing for a PPA the second time the provisional filing fee has to be paid again.  
  3. Delay in Patent Grant 
    When you file for a second PPA, you are delaying the filing of a non-provisional patent application by another year. 30 months is the average waiting period for a patent application.  

Conclusion 

PPAs are extremely convenient to file and serve the purpose of protecting your invention for a designated period but it is better not to fall into complacency and refile them. An incorrectly filed application can cost you patent rights at a later stage. Therefore, in matters related to PPA filing/refiling, it is best to consult your attorney to get the best advice. 

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