One of the most frequently asked questions by independent inventors is whether a provisional patent application can be refiled with the United States Patent and Trademark Office (USPTO). Yes, but… Yes you can refile a provisional application. But while refiling is simple, the consequences can be severe, and in many cases, may prevent you from ever obtaining a patent.
Refiling Is Easy, But Risky
The USPTO will accept a refiled provisional application, process your payment, and send you a new filing receipt. This makes it appear as though you’ve simply extended your patent-pending status, but that’s not what happens. When you refile, you establish a new priority date, and in doing so, you lose your original filing date. This can be catastrophic for your patent rights.
Understanding the Timeline
A provisional patent application is valid for 12 months. While a two-month grace period exists for certain correctable errors, it is not a general extension. In most cases, you should treat your deadline as 12 months from the date of filing.
Reviving a provisional due to error is possible, but only in specific situations (e.g., a calendar mistake), and it comes with a cost.
So for planning purposes, assume your provisional expires after 12 months.
Why the Filing Date Matters
Your filing date is like a time-stamp that locks in your place in line. When your provisional expires, that original date is gone forever. If you refile a new provisional, you start over with a brand-new date, and you can’t use the old one.
This creates a big problem: anything you or others revealed about your invention after the first filing now counts against you. Even worse, some things that weren’t a problem under your first filing date might suddenly block your patent under the new one.
Example:
- You file Provisional #1 on February 1, 2020.
- You don’t file a non-provisional, so it expires on February 1, 2021.
- You refile Provisional #2 on January 30, 2021.
What happens?
- You cannot claim back to the February 1, 2020 date.
- Your new filing date is January 30, 2021.
- Anything that happened in between those dates can now count as prior art.
That one-year gap may look small, but it can completely wipe out your chances of getting a patent.
The U.S. Grace Period
The U.S. gives inventors a 12-month “grace period” after their own public disclosure. For example, if you showed your invention on March 15, 2020, you have until March 15, 2021 to file.
But if you:
- File a provisional on April 30, 2020 (after your demo), and then
- Refile another provisional on April 30, 2021 instead of filing a non-provisional…
Your original demo is now outside the grace period. It turns into prior art against you, which means you may never get a patent.
The Extra Risks of Resetting Your Date
When you reset your filing date, you face two big risks:
- Your own actions (like a demo, sale, or online post) can become prior art.
- Other people’s disclosures may pop up in that gap and block your patent.
Patent searchers often notice that new prior art tends to surface in 18-month waves. Resetting your date puts you right in the danger zone.
Why Inventors Refile Anyway
The decision to refile a provisional is usually driven by financial limitations. Filing fees may seem minimal. The cost difference can influence inventors to choose the cheaper path, but this choice can cause long-term damage.
A Better Alternative: File a Non-Provisional
In cases where a provisional was prepared with care, a good strategy is to file a non-provisional patent application with a single claim, using the same content.
In one real example:
- A detailed provisional application was filed as a non-provisional with one claim.
- The USPTO took several years to begin examination.
- By that time, the inventor had the funds to move forward and was granted a patent.
While this isn’t ideal, it can be effective when the provisional is as detailed as a non-provisional.
Maximizing Your Disclosure
To strengthen your application:
- Include drawings that fully describe the invention
- Write at least one paragraph for each drawing
- The more you disclose, the stronger your application will be
This approach also gives you the option to file a continuation-in-part (CIP) later, allowing you to add improvements while still claiming your original filing date.
Final Word of Caution
Refiling a provisional might feel like a simple way to “keep things going,” but it can actually put your patent rights at serious risk. Once your original filing date is gone, you can’t get it back. That means your own product demo, a trade show display, or even a social media post could suddenly be used against you, and sometimes forever block your ability to get a patent. If your invention really matters to you, don’t gamble with refiling. The safer path is to move forward with a non-provisional application or get advice from a patent attorney before your deadline runs out.
