What is a Provisional Patent Application?

Last Updated at: October 22, 2019
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What is a Provisional Patent application?

Are you on the verge of discovering anything new? Have you come up with a new idea or invention that could maybe change the world? If so, then you must definitely be wary of copy-cats who might misuse or steal your idea. To prevent this from happening, the first thing you could is to file a patent for the invention. Are you not sure of how to go about doing the same? There are different types of licenses and understanding which one suits your needs can go a long way in helping you keep your invention safe. That’s why this time around, we are going to take a look at provisional patents and how to file them.  [/responsivevoice]

Types of patent specifications

As per Section 9 of the Indian Patent Act 1970, there are two types of patent specifications, which are as follows:

  1. Provisional Patent Specifications
  2. Complete Patent Specifications

While a provisional specification is filed mid-way between the research, the complete specification works as a final patent that outlines everything about the product or invention. Hence, provisional specifications are always filed before complete specifications. Now let’s take an in-depth look at provisional specifications and why they are filed.

How does a provisional patent work?

Whenever you reach a stage in your research wherein you know you have found something valuable but are not in a position to come out with a full thesis; you can opt instead to file for a patent. By preparing a brief description of your work, you can apply for a provisional patent specification which you then submit to a patent office to get it verified. Afterwards, when you complete your research to a level wherein you can test and prove your hypothesis through a prototype, you can file a complete patent which makes the idea or invention truly yours. 

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Is filing a provisional patent mandatory?

While filing a provisional patent specification is an optional step, it is an excellent way to ensure that your idea is kept under wraps and is safe. If you choose to, you can skip this step, wait for the research to be completed and then file for a formal patent. But, you should understand that a provisional patent is not in any way or manner a rough draft that you submit. Rather, it is a document that defines the scope of your invention to an extent. Filing a formal patent later does not make your provisional patent defunct, and hence, it is a document that stays valid from the day of registration. However, after filing a provisional patent, if you fail to apply for a formal patent within 12 months, the research will be deemed to have been abandoned.

Advantages of a provisional patent specification

  1. Low cost when compared to how much formal patent costs
  2. The invention can be addressed as Patent Pending
  3. Removes or reduces confidentiality issues
  4. Gives room for the design to grow
  5. Secures your invention’s priority date
  6. Provides you enough time to work in peace
  7. Allows you to test the product commercially
  8. Gives you enough time to conduct market analysis
  9. Freedom to abandon the project
  10. Evolves into a granted patent

Documents required to file a provisional patent specification

  • Form 1 which serves as an application for a patent
  • Form 2 which serves as the form to file provisional specifications
  • Form 5 which is the declaration of inventorship
  • Form 26 which functions as a Power of Attorney. This is only required if you are registering for a patent through a patent agency.
  • E-filing fees as per the laws.
  • Form 3 for foreign applicants
  • Priority document to claim a priority date.
  • Illustrations or drawings of the invention if deemed necessary.

Contents of the provisional specification

  1. Invention’s Title
  2. Invention Description which starts with “The following Specification describes this invention…”
  3. Background of the invention
  4. The field into which the design falls
  5. Scope of the invention
  6. Object and statement of the design

Points to remember

  • Before starting with the formal procedure, make sure to know about the inventions that are not patentable in India.
  • Since a provisional specification defines your invention’s scope, make sure you think ahead to what the design can be and can do. 
  • Any element which falls outside the scope already established in the specification will not have the same priority date. Therefore, any provision which does not fall into the scope defined earlier will not have the same date of priority as the rest of the elements.
  • A provisional specification stays in the record books even if you file a complete specification later on.
  • Failure to file a complete specification within 12 months will lead to forfeiture of the patent.
  • The language used to file the provisional specification is extremely important. You must avoid words such as ‘must-have’ and ‘essential’, and focus on describing the element. 
  • Avoid limiting your scope while defining the provisional specification.
  • Since it is a very important document, it is always better to get it made by an experienced advocate.
  • The invention’s description must begin from the second page of the specification. 
  • No claims must be included in the provisional specification.
  • All claims must be added later while compiling a final specification.
  • In case any dispute occurs regarding the ownership of an invention, the date on which the provisional specification is filed, is accepted as the priority date. 
  • As it does not contain claims or technical drawings, provisional specifications take less resources to draft.

If you own a business and want to patent your invention, you may also be interested to know about the patent term extensions.

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