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A provisional patent is basically a temporary patent application that protects the invention of the inventor for a period of 12 months while the invention is in the stage of development and the inventor is preparing to file a non-provisional patent application.
The patent office does not examine the provisional patents but it does provide the inventor a filing date through which he or she can claim priority for his or her application for a non-provisional patent. Once the required documents and researched work are completed, the inventor can file a complete patent application.
It is a completely optional step to file a provisional patent application. In case you are at a stage where you have all the details regarding your invention, you can opt for complete specification. This article will serve as a complete guide about the provisional patents.
Since it is a completely optional step to file an application for provisional patent, you must wonder why people feel the need to file it. The reason is, a provisional application for patent enables the invention to get protection even before the complete specification is filed. Enormous detailing about the invention is necessary when it comes to drafting a complete specification. Completing the R&D for most inventions is painstaking and can take many months.
If one waits to figure out the invention first and then file the complete specification, it can be a very complicated process. Hence, by filing a provisional specification with the invention’s basic details, the inventor can get a priority date fixed. In addition to this, a provisional patent application does not mandate the invention’s claims or diagrams and it is way cheaper to file this kind of application.
After having filed the prov patent’s application, the inventor is granted 12 complete months to work on his inventions and decide on the claims upon which the complete specification will be filed. Hence, we can say that an application for prov patent acts as an interim protection to inventors and buys them more time for working on their inventions. An inventor is permitted to do marketing for his invention once the application for provisional patent is filed. However, he must label such an invention as ‘Patent Pending’ invention.
Marketing the invention would inform the public and the potential competitors that no one is permitted to imitate or attempt to market such an invention since the inventor is already working on it to get it patented by the patent office.
There are many merits of provisional patent application which encourage inventors to file it:
Relatively inexpensive: It is much cheaper to file a provisional application compared to a complete application.
The invention can be labeled with “Patent Pending” status: Even though a prov patent is not an actual patent and will not be converted into one unless further steps are taken, the inventor is legally entitled to label his invention with “patent pending” once the provisional patent’s application has been filed.
Allows time for the invention’s evolution: It can be a mistake to file a complete patent application while the invention is in its initial stage as this may not protect your invention adequately. This is why, in place of a complete application, it is more appropriate to file a provisional application which secures your priority date and gives you sufficient time to work on your invention which ensures that it can reach its fullest potential.
Allows time for testing the invention’s commercial potential: After the inventor has secured the priority date upon filing a provisional application, he can test out the willingness of other businesses to license his invention then patented. He can also get an understanding of the invention’s commercial worth and have enough time to conduct market research and test commercial potential.
In the 12 months provided upon provisional patent’s application, the inventor can easily make out whether he wants to move forward with complete application or back out based on the results of his market research and commercial worth of the patent, without worrying about its confidentiality.
You may abandon the provisional patent’s application: If you feel like the invention for which you have already filed provisional patent is not worth filing a complete application for, you can abandon it. It’ll save up your money.
You might want to abandon the provisional application if you feel like the invention doesn’t hold much commercial value or because no one’s willing to purchase or license it and you’re not keen on producing the invention either. Imagine all the money you’d have to pay in case of a complete application just to abandon the application ultimately. This is why provisional patent’s application is a better option when the patent is in its initial stages.
While filing a provisional patent application for your invention, you need to be careful to avoid any mistakes.
A provisional application for a patent is a scope defining document, not just a rough draft of your invention or idea. Every part of your invention which lies beyond the provisional application’s scope but you happened to develop it in 12 months will have to have the earlier priority date. This means that if a part of your invention is developed after a provisional application is filed and this part is outside the scope set by application, it will not have the benefit of priority date.
Filing complete specification later does not replace the provisional specification since the latter still remains in the record. The filing date and patent application number to the provisional application received is allocated by the patent office.
If you want to file a complete specification, make sure you do it within a period of 12 months from the date of filing provisional specification. After the 12 months expiry period, the patent’s application is considered to be abandoned.
Do not make the mistake of not disclosing the scope of invention properly.
Do not publicly disclose the part of the invention which is not granted protection by provisional specification. Doing so would destroy the invention’s novelty for the part which is not covered.
The language used in application of patent plays a crucial role in defining the invention’s scope. So, make sure the invention’s description is not limited. While writing down the invention’s description, avoid using limiting words like “must have”, “essential” or “consists”. Instead of such words, you can use terms like “writing device” instead of “pen” which would be a limiting scope and eliminate other writing devices like “marker” or “pen” from the scope. While applying for patent registration, a provisional or complete specification (Form 2) must be filed. Specification can be filed either as a provisional or a complete specification depending on the inventor’s requirement. Provisional specification is filed alongside patents application to secure a priority date for the application over other applications which can be filed for the same invention being developed concurrently.
The following are the contents of provisional specification:
Title of the invention
Applicant’s name, nationality and address
Description of the invention starts with preamble ‘The following Specification describes the invention’
The description contains
The field of invention and containing the background of the invention
The object of the invention and statement of the invention
Claims may not be part of the Provisional Specification
A provisional application for patent is an excellent idea to save costs while protecting your invention or idea. It provides you a period of 12 months to test the invention’s true potential before opting for the full patent procedure.
To apply for a provisional patent online, you need to submit a several forms and documents, including the following :-
Form 1 (Application for Grant) :- This is the application that you need to submit with the Indian Patent Office so they can grant you the patent. You need to sign and submit this form within 6 months of the filing of basic application. As an applicant, you must fill in all the relevant information in this form like name of the inventor, type of invention, etc. You must also sign at the end of the form. To sign the form digitally, it is important to have a Digital Signature Certificate.
Form 2 (Specification Complete/Provisional) :- Since your specifications are provisional in nature, this form is required to submit those specifications. Form 2 for provisional specification helps you to secure your priority date. After filing this form, you have a period of 12 months to file a more detailed complete specification using the same form, i.e., form 2.
Form 5 (Declaration of Inventorship) :- This form is referred to as the Declaration of Inventorship. It is a document that declares that you are, in fact, the inventor.
Form 26 (Power of Attorney) :- This form is meant for the Power of Attorney. It is required if you are being assisted in the filing process by a patent attorney.
Form 3 (Foreign Filing Details) :- It is a declaration form that entails you declaring that you are going to inform the administration of India if you apply for patent registration in foreign countries as well.
Apart from the above-mentioned forms, you must also submit diagrams and illustrations of your invention.
All the above-mentioned documents must be submitted with the Indian Patent Office, according to the provisions of the Indian Patent Act 1970. To submit the forms online, you can visit the official IP India portal. You must also pay the prescribed form fee for each form.
Remember that, once you file Form 2, you will have a period of 12 months from the filing to submit the detailed complete specification using the same form again. If you fail to file the form again within the due date, your application can be deemed abandoned and you can lose your priority date.
Q1. What are the drawbacks of filing a provisional patent application?
A. The major drawback of filing an application for provisional patents is that it does not offer protection for any patent on its own. The patent application period ends after 12 months. The inventor will be required to file an application for a non-provisional patent during the period of 12 months if he or she plans to move forward with the patent process.
Q2. What should the inventor do when provisional patent application expires?
A. If the application for provisional patent has reached its expiration date and you’ve failed to file a non provisional patent application, the inventor will lose his patent rights. However, a fresh provisional patent application can be filed for the same invention. But, in this case, he or she will not be able to claim priority to the filming date as per his or her original patent application.
Q3. How many times can a provisional patent be renewed?
A. This application cannot be renewed. It is only a one time filing which comes with a validity of 12 months. Once this period ends, it expires and the inventor is required to file a non provisional patent application if he wants to carry on with the patent process.
Q4. When should an inventor file a non-provisional patent application?
A. The inventor must file an application for non-provisional patent before the expiration date of provisional application i.e., within a period of 12 months from the date on which the provisional patent application was filed. However, he or she can file a non-provisional patent application earlier in case he or she has already developed his or her invention and feels like it’s finally time to seek patent protection.
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