Provisional Patent – Advantages, How to file for Provisional Patent

Updated on: Oct 12th, 2021 - 8:36:22 AM

6 min read

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Intellectual property in the form of patents is protected in India when a person registers a patent under the Indian Patent Act, 1970 (hereinafter referred to as the ‘Act’). Obtaining a patent prevents other individuals or concerns from infringing into your invention. A patent may be obtained on a design or a process. Under the Act, there are two types of patent specifications.

Under Section 9 of the Act, patents are specified under two categories:

  • Provisional patent specification
  • Complete patent specification

What is a Provisional Patent?

A provisional patent is a preliminary step and is obtained to get protection before being able to file a complete patent. To get a complete patent, a lot of details of the design and its specifications are required. When a person is involved in R&D even if they do not have a fully formed design or process that is patentable, they may obtain a provisional patent to protect their work.

Compared to a complete patent a provisional patent has shortcomings, especially upon the period of protection given to the intellectual property that has been provisionally patented. The main reason for allowing provisional patents is to provide security and a form of interim protection to investors and inventors until they are fully able to pursue a complete patent.

Advantages of a Provisional Patent

When it’s about filing for a patent, many factors such as cost of filing, date of filing, protection period, etc come into play. Therefore filing a provisional patent renders the following advantages:

  • Cost-effective: The provision for provisional patents is given under that Act to ensure that in the case where the investor/inventor does not have the financial threshold to file for a complete patent or hire a patent agent, they are given time to do so. The cost of filing for a provisional patent is considerably lower compared to that of a complete patent.
  • Interim protection: When one file for a provisional patent and the filing is approved, the filer is then protected for 12 months from the date of the initial filing. This ensures that in the meantime, they further improve their invention or are given time to do whatever they need to do before obtaining a complete patent.
  • Patent filing date: When a person is trying to file for a patent, the date of the filing plays a significant role. For example, where there are two similar applications, the priority is given to the application with the earlier filing date compared to the application with the later filing date. Therefore when one has a provisional patent, and then he files for a complete patent, the date that is taken as the filing date will be that of the date on the filing of the provisional patent.
  • Tag: Upon obtaining a provisional patent, the inventor/investors may use the tag of ‘Patent Pending’ when they try to find the commercial potential of their new design/process.
  • Abandonment: When a person has a provisional patent and wishes to abandon trying to get a complete patent, he may do so without worrying about the cost of the whole process.

It is to be noted that a provisional patent is an optional step. If the inventor/investor is able to submit for a complete patent, it is always better to do so to avoid possible setbacks.

What Information Will a Provisional Patent Contain?

  • The name/title of the invention/design/process
  • Provisional specifications (Note: Provisional specification do not have to contain claims section)
  • Description of the invention (Note: The description of the invention should not be scarce and limited)
  • Field and objective of the invention

How to File for a Provisional Patent?

To file a provisional patent application, one must submit a series of forms and documents.Documents needed to file for a provisional patent include:

  • Form-1: This form is used for application for grant of patent. It must be signed and submitted within 6 months of the filing of the basic application. All the relevant information in this form such as the name of the inventor, type of invention etc. needs to be filled and the applicant must sign at the end of the form.
  • Form-2: This form will contain provisional specifications. You must write ‘PROVISIONAL SPECIFICATION’ and mention the title, name of the applicant. Also, in this form you must give a description of the invention.
  • Form-3: A form used for corresponding foreign patent application(only required if there is a foreign patent application).
  • Form-5: It is the declaration of inventorship.
  • Form-26: A form declaring the power of attorney to authorise the Patent Agent (only required if an application is being filed via a patent agent). It must be submitted within six months of the application filing
  • Form-28: A form to claim as a small entity (only if required). – Submission of the drawing/illustration/design of the invention (not required in the case of a process). – E-filing fee

All these have to be submitted in accordance with The Patent Rules (2003). All forms are available for download on the patent office website.

Disclaimer: The materials provided herein are solely for information purposes. No attorney-client relationship is created when you access or use the site or the materials. The information presented on this site does not constitute legal or professional advice and should not be relied upon for such purposes or used as a substitute for legal advice from an attorney licensed in your state.

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