Provisional patents

What are they? How long do they last? How much? Why file? Can you sell? Do they protect?

What is a provisional patent?

A: A place marker that reserves your priority to patent an invention.

A provisional patent reserves your priority to patent an invention.

The filing date of an adequate provisional patent is called the ‘priority date’. That’s the key date that patent examiners will use when assessing whether your invention qualifies for a patent. Generally speaking, a patent cannot validly cover anything that was publicly known before its priority date, although some countries have grace periods.

We’ve emphasised ‘adequate’ because a patent’s wording is critical – there’s more on that below.

How long does a provisional patent last?

12 months: If you wish to continue patenting, a full patent application should be filed within that 12-month window. The full patent application might be an Australian standard patent application or an international patent application.

If you don’t wish to continue, the 12-month deadline can simply be allowed to pass. Basic details such as the title and filing date will appear on the Australian patent database, but the patent itself won’t be published.

How much does a provisional patent cost?

Preparing and filing often costs about $6,000 + GST. See also: How much does a patent cost? and How much does a patent attorney cost?

Why file a provisional patent?

Firstly, to maximise the chances of securing a valid patent. You will lose patent rights if similar technology is published before you file. Filing at an early stage of a project reduces this risk. Extra detail can be included in the full patent applications. This means that details settled as the project moves along can be captured as part of the same patent strategy.

Secondly, it gives you an additional year of protection because the 20-year term of a patent is calculated from the full patent filing date.

Thirdly, it defers the cost of the full patent application(s).

Filing allows you to go public

Once an adequate provisional patent is filed, you can publish, make, use and sell (etc) the invention without harming your patent rights in what you have invented so far.

Can you sell a provisional patent?

Yes: Patents and patent applications are assets that can be bought and sold.

Does a provisional patent protect your invention?

Yes: If an imitator enters the market, you can accelerate the patent process. In Australia, you would hope to secure a granted patent within seven months. You could then take action against the imitator. You might also reach out to the imitator before the patent is granted.

Provisional patent application

On this page we use the everyday term ‘provisional patent’. To be strictly correct, we should say ‘provisional patent application‘. It’s a technical point, but it’s important to use strictly correct terminology when describing your patent rights in marketing materials and correspondence. It’s an offence to suggest that you have a patent when, strictly speaking, you only have a patent application. ‘Patent pending’, ‘Patent applied for’ and ‘AU patent application no. 1234567890’ are all suitable markings when you have a patent application.

Filing is straightforward

Filing involves little more than filing wording and drawings with the Australian Patent Office. The wording and drawings are not routinely examined in any detail. So long as basic formal requirements are satisfied (e.g. the document appears to be a patent specification in English), objections are unlikely.

The wording is critical

Whilst filing is straightforward, it is critical that the wording and drawings are carefully prepared. A full patent application could well be invalid if its wording is not adequately linked to the provisional wording and drawings.

We pride ourselves on drafting high quality provisional patents to form solid foundations for effective patent protection in Australia and internationally. Please see what our clients have to say about us on our Home Page and Google Reviews, or click through to see examples of our work.