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Comment by octoberfranklin | Hacker News Reader

> Almost every single provisional application I’ve seen filed without a lawyer’s input has been close to worthless.

Wait, you mean they failed to establish priority?

As in, they filed the full patent with a lawyer within 12 months and then sued somebody who infringed during that 12-month period and lost because of a defect in the provisional filing?

That would be pretty surprising if you'd seen many instances of that happening.

The point of the provisional application isn't to be a patent. It's to buy you an extra 12 months of priority in which to decide if you want to hire a lawyer. Do provisional patents really fail to do this limited job on a regular basis?

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The problem can occur if the provisional patent application were to be found in court not to support the "full patent" filed with a lawyer. For example, if the "full patent" includes 10 pages of explanatory text, and 10 drawings, and the provisional patent application filed by the inventor only contains 1 paragraph of explanation, and 1 drawing, aspects of the "full patent" might not be apble to claim priority to (or be suported by)the provisional application.

I think the legal system is a wee bit more nuanced than counting drawings and concluding "10 is greater than 1".

@octoberfranklin. Agreed. You are correct. The law is more nuanced. Mine was intended to be a short example for a layperson. I thought a nuanced 10,000 word response might be overkill in this forum. :-) My intention was to point out that a short provisional patent application prepared by a non-expert in patent law may end up not providing the intended protection.

In the olden days before the AIA (America Invents Act) US Provisional applications provided inventors proof of invention. Back then proof of invention would establish the presumptive priority date for the whole invention. The details could be fleshed out in the subsequent filed non-provisional application.

After the AIA, the so-called first-to-file rule took effect where priority date is set based on the date you file the first application (provisional or non-provisional). But for a few exceptions, the first to file wins, first to invent does not apply anymore.

Now, US Provisional patent applications only protect the subject matter that is in the fours corners of the document. The only time we file provisional applications now, is if it there is a bar date emergency or the inventors have not had time to approve the draft non-provisional application before the bar date.

@pnw_hazor -- Agreed.

What I mean is that they didn't include enough information to provide support for the claims that eventually issued in the patent. And yes, that will cause the attempted priority claim to fail for the issued claims.

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