Provisional Patents

As it's name suggests a Provisional Application is just that, it is a temporary or interim application filed with a Patent Office before making a Final or Complete application.

A provisional application sets the scene for an invention. It provides a framework that an inventor can use to develop an idea, investigate some of it's commercial implications and explore possible markets for its manufacture or sale before being burdened with the cost and effort of gaining full legal protection by filing a Completed Application.

Although, not in itself, enough to monopolise an invention a provisional application will provide an applicant with an all important priority date and patent pending number. As such, Provisional applications are widely used by inventors as a low-cost option for beginning the Patent process.

The provisional application signals to the market the serious intent of an inventor to commercialise an invention and allows prototypes to be made, products to be marked with the patent pending number and the invention to be publicly disclosed and sold without losing the ability to seek full monopoly rights within the following 12 months.

If you wish to learn more about Filing a Provisional Patent Application please go to the Patents topic in the Articles section of the Virtual IP Library.

Requirements of a Provisional Patent

Although, there are very few requirements for filing a Provisional Patent, a Provisional application should always incorporate one absolute essential: That is, it must provide enough details for a skilled worker to duplicate the invention and "that the disclosure filed as the provisional application adequately provides a written description of the full scope of the subject matter regarded as the invention and desired to be claimed in the later filed non-provisional application. Additionally the specification shall disclose the manner and process of making and using the invention, in such full, clear, concise and exact terms as to enable any person skilled in the art to which the invention pertains to make and use the invention and set forth the best mode contemplated for carrying out the invention". [See 35 U.S.C. 112, 1st paragraph]. As long as this fundamental obligation is met there is little else that is required. A Provisional patent does not have to have Claims and does not need to follow any particular format. In fact, many Provisionals are often quickly cobbled variations of scientific papers, design or product specifications.

Therefore, when preparing a provisional application it is important to consider what the final document might look like. In this regard, and most certainly for all US Provisional applications, it is imperative that when an apparatus is the subject of the patent that the description is supported by drawings clearly illustrating the inventive features of the apparatus.

If you wish to learn more about Filing a Provisional Patent Application please go to the Patents topic in the Articles section of the Virtual IP Library.

Is a Provisional Patent Recognised Internationally?

Yes! Most countries recognize a Provisional application as being the legal starting point for an invention. All major countries such as the United States, Australia, Singapore, Japan, UK, China and New Zealand allow and encourage the filing of a provisional patent application to secure a "priority" filing date.

Importantly, a provisional application is given a priority date and a patent pending number and is valid for one year. Please be aware though that to retain the priority, a Final or Complete Patent application, or any foreign filing must be filed before the 12-month anniversary of the date of filing the provisional patent application or the original filing date will be lost.

Other features to be aware of are that a Provisional Patent is not examined and its contents remain secret to the public. This means that the inventor is very much in control of the information concerning his invention and can disclose it, or not, depending on his situation. This is extremely advantageous and can give an inventor considerable leverage in the marketplace. In such a case, the Provisional Application not only serves to establish a priority date for a later filed Regular United States or foreign patent application it also acts as a deterrent to competitors and other would-be copiers. Please also note, that in many countries, if a provisional application is to be filed in a country other than the country of origin it is necessary to obtain permission to do so from your local Patent Office.

If you wish to learn more about Filing a Provisional Patent Application please go to the Patents topic in the Articles section of the Virtual IP Library.

Provisional Patent Applications – Advantages:

When properly drafted and managed there are few disadvantages to filing a provisional application.

Advantages: