Important information about why you should file a provisional patent application

Written by Mike Biagio on 12 February 2023

A provisional patent application is a legal document filed with IP Australia that provides inventors with a lower-cost and simpler alternative to a regular patent application. The main purpose of a provisional patent application is to secure an early filing date for the invention and to give the inventor one year to assess the commercial potential of the invention before deciding whether to pursue a “complete” patent. Provisional patent applications have become increasingly popular in recent years due to the rise of startups and new technologies, and they offer a number of advantages and disadvantages that inventors should consider when deciding whether to use this form of protection.

One of the main advantages of provisional patent applications is that they allow inventors to secure an early filing date for their invention, which can be important in situations where the invention is rapidly evolving or there is a risk of others filing similar applications. By filing a provisional patent application, the inventor can establish priority for the invention and can use the term "patent pending" to warn others that the invention is protected.

Provisional patent applications also offer inventors more flexibility in terms of timing, invention development and business strategies. For example, during the first 12 months, any developments or improvements to the invention that were not put into the provisional patent application can be covered by filing of supplementary provisional patent applications. The supplementary provisional patent applications provide a filing date for the improvements.

An inventor who has filed a provisional patent application can negotiate with potential investors or licensees, participate in trade shows and other events, or sell the invention without worrying about their disclosure invalidating their patent rights.  Inventors can also negotiate with manufacturers, licensees, distributors or the like, using the priority rights that the provisional patent application gives them as leverage.

In addition, filing a provisional patent application allows for an extra year of delay before filing of complete patent applications that come together with their associated prosecution costs, renewal and maintenance costs.

Despite these advantages, there are also some disadvantages of provisional patent applications that inventors should be aware of. One of the main disadvantages is that a provisional patent application does not provide any legal protection or rights, and it does not guarantee that a regular patent will be granted. In order to receive a patent, the inventor must file a non-provisional patent application (also called a regular or complete patent application) within one year of the filing date of the provisional patent application. If the regular patent application is not filed within this time limit, the provisional patent application will be abandoned, and the inventor will lose the right to claim priority to the filing date(s) of the provisional patent application(s). 

In conclusion, provisional patent applications are a valuable tool for inventors who are seeking to protect their innovations and to assess their commercial potential. They offer a flexible alternative to regular patent applications, and they provide inventors with more time  to make informed decisions about the future of their invention. However, inventors should be aware of the limitations of provisional patent applications and the additional investment of time and effort required to convert them into regular patents. When deciding whether to file a provisional patent application, inventors should carefully consider their specific needs and goals and seek the advice of a patent attorney or agent if necessary.

If you have any questions about provisional patent applications, please feel free to contact one of our patent attorneys at IP Guardian.

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