What can I do for an expiring provisional patent? 5 Answers as of January 07, 2011

I have a provisional patent that is about to expire in 2 days. As of now, I figured I don't have enough specific information or too broad to go for non-provisional. So, I am thinking let my current provisional patent expire or withdraw it. (Are there any difference let it expire (abandon) or withdraw? If I withdraw or let it expire (abandon) will the provisional patent become a public knowledge? I really don't want that to happen since I am planning to make a new patent. What are choices? Which I even think about re-filing?

Thank you in advance and please let me know my options also.

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Mark S. Hubert PC
Mark S. Hubert PC | Mark Hubert
Provisional will not be published. However if you have shown the provisional around or publicly made or used the invention you have only 2 days to file for a utility patent - then you loose the right to.
Answer Applies to: Oregon
Replied: 1/7/2011
Handal & Morofsky LLC
Handal & Morofsky LLC | Anthony H. Handal
You probably have only one option to preserve rights. You need to file as a non-provisional to keep the priority date. A continuation case can be filed later to add new information. You should consult with an attorney, as an incurable error is possible.
Answer Applies to: New York
Replied: 1/7/2011
Michael M. Ahmadshahi
Michael M. Ahmadshahi | Michael M. Ahmadshahi, Ph.D., Esq.
If you're not prepared to file a non-provisional application, you don't have to do anything and the only thing you lose is the filing date of the provisional application. There's nothing to be concerned about either regarding the content of your provisional application. It will never be published and remain secrete at the USPTO.
Answer Applies to: California
Replied: 1/7/2011
Fish & Associates, PC
Fish & Associates, PC | Robert D. Fish
The only way to retain priority to the provisional is to file a utility or a PCT application claiming priority to the provisional. One thing we have done from time to time is essentially re-file the provisional as a placeholder utility. That requires adding claims if needed, and satisfying all other requirements of a formal application. We then file a Continuation-In-Part (CIP) off the utility when we get sufficient additional information, and abandon the first utility. Of course, that only makes sense if there is sufficient disclosure in the provisional to satisfy the best mode, enablement and written description requirements for what is being claimed. If the disclosure is insufficient in any of those areas, then the provisional is likely worth little or nothing anyway, and there's no harm in abandoning it.

Of course, you can re-file the provisional, with or without any changes. That is very low cost, but is a waste of time unless the application has sufficient disclosure in the provisional to satisfy the best mode, enablement and written description requirements. You can learn about those requirements in the Strategic Patenting book, which you can read for free.
Answer Applies to: California
Replied: 1/7/2011
Devon & Associates
Devon & Associates | Marcia A. Devon
You must file your utility application in 2 days or your patent application will be deemed "abandoned". There is no legal difference between withdrawing it or letting it become abandoned. If you send me your provisional patent application and a disclosure of your "new patent", I could provide you with specific legal advice.
Answer Applies to: California
Replied: 1/6/2011
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