NDA vs. Provisional Patents: What Should You Use First?

NDAs vs. Provisional Patent Filings

Protecting Your Invention Before You File

When developing a new product, method, or idea, protecting your intellectual property early is key. Two of the most common tools used in the early stages are:

• Non-Disclosure Agreements (NDAs)

• Provisional Patent Applications

While both aim to safeguard your invention, they serve very different purposes and offer different types of protection.

NDAs: Keeping Conversations Confidential

A Non-Disclosure Agreement (NDA) is a legal contract used when you’re sharing your idea with someone else — like a manufacturer, investor, consultant, or collaborator. It prevents the other party from disclosing or using the information without your permission.

When to use an NDA:

• Before discussing your idea with potential partners or investors

• When involving third parties in R&D or prototype development

• During early-stage business discussions or due diligence
  
  

Limitations of NDAs:

• NDAs do not give you ownership or legal rights in the invention

• They cannot stop others from filing a patent first if they develop the idea independently

• Enforcement can be difficult or costly if a breach occurs

• They offer no IP protection if the idea is disclosed publicly or leaks outside the NDA 

Provisional Patent Applications: Securing a Filing Date

A provisional patent application is a legal filing with the patent office that formally establishes your invention and your priority date — the date you claim the invention as yours. It is not examined and does not result in a granted patent on its own, but it acts as a placeholder for up to 12 months.

Benefits of a Provisional Application:

• Locks in your filing date and “patent pending” status

• Allows public disclosure, marketing, or investor pitches after filing

• Provides time to further develop the invention before filing a full application

• Useful if you are worried about others filing first

Limitations of Provisional Filings:

• Must be followed by a non-provisional (formal) patent application within 12 months

• Requires a clear and enabling description of the invention — vague ideas do not qualify

• Filing does not guarantee a future patent

How They Work Together

NDAs and provisional filings are often used in tandem:

• Use an NDA before any early discussions about your invention (especially before filing).

• File a provisional application once your invention is sufficiently developed and you are preparing to disclose it publicly or to potential partners.
  
  

Once a provisional is filed, you can disclose the filed invention more freely under the “patent pending” umbrella.

Which One Should You Use?

There’s no one-size-fits-all answer — every situation is different. The right approach depends on your invention, your goals, and how far along you are in the development and disclosure process. 

• If  you're in the early stages of exploring your idea or seeking feedback from potential partners, an NDA can help protect confidential discussions.
  Start with an NDA.

• If you're preparing to present publicly, share broadly, or enter the market, a provisional patent may be the better path to secure a filing date.

• If you're somewhere in between or not sure where you fall, speak to an IP professional to map out the right timing and combination of tools for your specific needs.

Both NDAs and provisional filings can be valuable — and often, they're most effective when used together as part of a broader strategy. 

© Khanijoun Intellectual Property Law

This article is provided for general informational purposes and does not constitute legal advice.