Q: If you file a second provisional patent application, can it duplicate same data that was in the first?

2 Lawyer Answers
Kevin E. Flynn
Kevin E. Flynn
PREMIUM
Answered
  • Patents Lawyer
  • Chapel Hill, NC

A: You can file the same text from a first provisional patent application in a second provisional patent application.

If you wait past the 12 month anniversary for the first provisional patent application, it will be discarded and in many ways it will be as if the first provisional patent application did not exist.

When my clients are struggling to raise money, I sometimes suggest that they file the original text from the provisional in a second provisional application a few months after the first provisional was filed. (costs very little as the heavy lift was drafting the provisional application). If funds come in soon enough, we file a non-provisional application that cites to the original application but not the duplicate. If funds come in later, we file the non-provisional application citing the second or subsequent provisional application and not the expired one(s).

NOTE -- if you are going to rely on a second filing of the provisional application you need to be sure that there has not been a public use or public sale before the filing date of the second provisional application as that second date will be too late. Ideally you file the second provisional application before a public disclosure such as your web site so that you preserve rights to seek patents outside of the US.

I hope this helps.

Kevin E Flynn

Mark David Torche
Mark David Torche
Answered
  • Patents Lawyer
  • Marshalltown, IA

A: The short answer is yes. As long as there are no other issues such as public disclosure. You can actually file the exact same provisional application after the first one expires as long as you realize that provisional applications cannot claim priority to any other applications so each application will get its own filing date with the one year time to file full utility starting on each filing independently.

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