Provisionals Are Never Published

One advantage of filing a provisional application is that its contents remain secret at the patent office — at least until the provisional is incorporated into a utility application, and the file wrapper for that utility is published when the ensuing patent is issued. That lack of publication can be a significant benefit to an applicant because it allows the applicant to establish a priority date without necessarily committing to having the disclosure revealed. Thus, an applicant may want an early priority date because he is afraid that a competitor will soon be filing an application on the same or a similar subject matter. Filing the provisional offers an inexpensive way for the applicant to draw his line in the sand, but then cover over the line within a year when he discovers that the competitor was working on a completely different subject matter.

It should also be noted that a provisional application is not published along with the utility or PCT applications when they are automatically published at 18 months. The provisional is only published as part of the file wrapper when the corresponding patent issues. Thus, if an applicant files a provisional on 1/1/04, and a utility anytime before 1/1/05 claiming priority to the provisional, then the utility (but not the provisional) will be published 18 months after 1/1/04 = 7/1/05.