Provisional Patent in India: Definition, Benefits, Filing, Costs & more

A provisional patent application is a temporary form of a patent application that establishes a filing date but does not mature into a complete patent application.

A provisional application allows an inventor to secure priority rights for their invention without having to undergo the full examination process. However, within one year of filing the provisional application, the applicant must submit a complete patent application claiming priority to the provisional application in order for it to remain valid. If this deadline is not met, then the provisional application will be deemed abandoned and cannot be used as a priority application in any future applications filed by that individual or company.

What are the benefits of applying for a provisional patent application?

1. It gives you a year to develop and test your idea before filing for a full patent.

Applying for a provisional patent application provides you with the opportunity to test your idea and ensure it is commercially viable. By filing the provisional patent application, you will have 12 months to decide whether or not to move forward with a complete patent application.

2. It gives you time to build a business around your patent pending idea.

Applying for a provisional patent application allows you to secure the priority date of your invention. During this period, you can conduct real market research, evaluate the worth of your invention, and use the “patent pending” label without worrying about it being stolen or losing confidentiality. This gives you time to build a business around your invention while still protecting it with a provisional patent application.

3. It protects your idea from being stolen by other inventors.

It is important to apply for a provisional patent application because it can help you to protect your new product, process or technical improvement to an existing technology. A provisional patent application filing date serves as a priority date and can help claim the provisional date as the first filing date.

4. It gives you the confidence to talk to investors about your idea knowing that they can’t steal it.

Applying for a provisional patent application helps to secure the priority or filing date for the patent, providing you with patent pending status. With this status, you can talk to investors about your idea without fear of it being stolen or losing novelty.

5. It gives you a year to refine and perfect your patent before it is officially submitted to the patent office.

Applying for a provisional patent application allows you to test the commercial worth of your invention and gain more time to refine it. This includes having the opportunity to conduct real market research and ensure that your idea is marketable before committing to a complete patent application.

By filing a provisional application first, you will have 12 months to decide if it’s worth applying for a patent, as well as additional time to research and work on your invention. Additionally, by filing this type of application no details about your invention will be published publicly so you can keep them confidential until the complete patent application is filed with the Indian patent office.

6. It allows you to begin advertising and marketing your patent pending idea before it is even approved.

Applying for a provisional patent application allows you to test the commercial worth of your invention and conduct real market research before making a final decision.

This enables you to start advertising and marketing your patent pending idea before it is approved, as you have 12 months of time to decide whether or not to move ahead with a complete patent application. You can also use this period to verify that your invention idea is unique before investing further on a complete patent application later on.

7. It allows you to establish early relationships with suppliers and distributors before your patent is approved.

Applying for a provisional patent application can help you establish early relationships with suppliers and distributors. This is because it gives you 12 months to test the commercial worth of your invention, conduct real market research, and make decisions about moving forward with a complete patent application.

By taking advantage of this time period, you can build relationships with potential suppliers and distributors.

8. It reduces the initial fee for submitting a patent application.

Applying for a provisional patent application reduces the initial costs for submitting a complete patent application because it is less expensive than filing a complete patent application.

By filing for a provisional patent, inventors can save money on drafting & filing fees since there are fewer requirements and fewer costs associated with this type of application, as opposed to drafting & filing a complete patent application.

How do you apply for a provisional patent application?

Step 1: Identify the need for a provisional patent

A provisional patent allows for an interim form of protection for inventors until a complete patent can be filed. It allows the inventor to obtain a priority date for their invention and gives them 12 months to decide if the provisional patent application is worth pursuing.

One of the primary advantages of a provisional patent is that it gives the inventor an opportunity to refine their invention to meet the established standards of patentability. This is especially important for those involved in R&D, as they may not have a fully formed the design or process that is patentable. A provisional patent provides protection and gives them the time to develop their ideas further.

Without a provisional patent, the inventor or innovator is at risk of losing their intellectual property to others who may come up with similar ideas. A provisional patent prevents this from happening by providing an early form of protection that can be extended to a complete patent if the inventor so chooses. The filing of a provisional patent application is the quickest way to protect an invention and makes sure that the inventor’s rights are secured.

On the other hand, if the invention is fully matured, you can consider directly filing a complete patent application, without filing the provisional patent application.

Step 2: Prepare the provisional patent specification

Before starting to draft a provisional patent specification, it is essential to review and compare the existing patents to ensure that your invention is novel and distinctive. A patentability search may be conducted to identify similar technologies.

A provisional patent specification needs to be as detailed as possible and may include all the sections of a patent application like Title, Background, Object of the invention, Statement of Invention, Detailed description, Drawings, etc. Sections like Claims and Abstract are not mandatory to be included in a provisional patent specification in India.

A provisional patent application should be broad enough to meet all patentability requirements. Focus should be paid to avoid language that limits its scope too much. The specification should also include any necessary drawings.

Once the provisional specification is prepared, the provisional patent application will be filed online (after approval by client) along with relevant documents.

Step 3: Complete the forms and file the provisional patent application

Filing the provisional patent application with the Indian patent office is a mandatory step to finally protect your invention or idea. With the provisional patent application, you can secure a priority date for your invention in India and have a 12-month period to determine if the patent should be taken forward.

Here is a step-by-step guide to file your provisional patent application in India.

Get started by filing your provisional patent application online using Form-2 and the related documents.
Prepare other documents required to file your provisional patent application. These include Form-1, Form-3, Form-5, Form-26, and Form-28.
Fill in the relevant information in the Forms, such as the name of the inventor, type of invention, etc., and sign.
Submit the drawings, illustrations, or design of the invention, if applicable.
Pay the e-filing fee to complete the patent filing process.

These steps should be followed as per the Patent Rules (2003) to ensure a successful filing of your provisional patent application in India. After submitting your provisional patent application, you will get a priority date associated with the patent, which will remain valid for 12 months. If you decide to continue with your patent during this period, you need to file a complete patent application within 12 months of your priority date.

Step 4: Generation of Patent application number

Once a patent application is paid and filed online, the application is automatically assigned a patent application number. The filing receipt once generated will depict the Patent application number, which can be used to track the progress of the patent application over time.

How much does it cost to file a provisional patent application in India?

The cost involved in filing a provisional patent application in India depends on various factors such as the complexity of the invention, the number of pages in the provisional specification, and the fees charged by the patent attorney or agent. Normally, filing a provisional patent application is a less expensive and simpler process.

Generally, the total cost to file a provisional patent application ranges between ₹ 7,600 to ₹ 75,000 in India. (see: Patent costs in India article for more details). Provisional patent costs include government fees & professional fees paid to a patent agent or attorney.

The government fee for filing a provisional patent application in India with up to 30 pages is 1,600 for individual applicants, SME’s and Startups; and 8,000 for large entity applicants. Whereas the professional fees charged by experts for drafting and filing a provisional patent can vary significantly. It typically ranges between 5,000 to 75,000 normally, depending on the technology area, years of experience of the expert, etc.

It’s advisable to obtain quotes from multiple patent attorneys or agents to compare the costs and choose the most cost-effective option; or check the Zatapult expert marketplace to quickly check and compare. It’s also important to ensure that the patent attorney or agent has the necessary experience and expertise to handle the patent application process effectively.

How much time does it take to file a provisional patent application?

Typically, the time required to file a provisional patent application in India ranges between 2- 15 working days.

The steps involved and the approximate timelines are provided below:

Drafting of the provisional patent specification – This is the most time consuming step in the patent process. Drafting a provisional patent application can be done in 2-15 days, depending on the complexity of the invention, availability of the patent experts, extent of details provided by the inventors, etc. This step may further involve 1-2 rounds of review by the client and subsequent changes and modifications, which might increase the timelines.
Filing of the provisional patent application – Filing the provisional patent application involves preparing all the necessary patent forms and uploading to the official patent office website. Generally, this step can be accomplished in 1-2 days after all the filing details are provided by the applicant or inventor.

What document are required to File Provisional Patent application in India?

To File Provisional Patent application in India, the following documents are generally applicable:

Form-1. Application for Grant of Patent
Form 2 – Application form for the filing of a provisional specification. This may additionally include any drawings or diagrams that help explain the invention.
Form 3 – Statement and Undertaking Under Section 8
Form 5 – Declaration as to Inventorship
Form 26 – Authorizes a patent agent or attorney to act on behalf of the applicant
Form 28 – To Be Submitted By Small Entity / Startup

It’s advisable to seek the help of a patent attorney or agent for the preparation and filing of a provisional patent application to ensure that it meets the legal requirements and increases the chances of a successful full patent application in the future.

FAQs

How long is the patent protection provided by a provisional patent application? And what happens if the protection window is over?

The patent protection provided by a provisional patent application lasts for 12 months from the date of filing.

During this time, the inventor has the opportunity to file the complete patent application which will provide them with more comprehensive protection for their idea or invention.

If you don’t file the complete patent application within 1 year, the provisional patent application will get abandoned.

Can I Sell a Provisional Patent?

Yes, you can sell a provisional patent. Selling a provisional patent is essentially just selling an “idea” with no proven demand from the market. Unless your invention is extremely innovative while showing clear market potential, it may be quite challenging to get significant money for your provisional patent application (if you can even find a buyer at all).

But yes, if you do find a buyer, you can assign your rights in the patent application to someone else.

Can I file a provisional application without an attorney or agent?

Yes, you can file a provisional patent application in India without the assistance of an attorney or agent. However, it is recommended to seek the assistance of a patent attorney or agent, especially if the invention is complex or if you have limited experience in preparing and filing patent applications.

A patent attorney or agent can help ensure that your provisional patent application meets the legal requirements and increases your chances of a grant. They will also provide guidance on all aspects of the overall process and help avoid common mistakes which could lead to rejection from applying for a Patent.

If you choose to file without an Attorney it’s important to research the Patent Law in India as well as create an exhaustive provisional specification that accurately describes your invention. You should also make sure all fees are paid on time, relevant required documents are submitted promptly and no deadlines are missed.

If budget is a primary reason why you are looking to avoid using a patent agent or attorney, you can get experts on Zatapult marketplace draft and file a provisional patent application for as low as 7,600 (including professional and government fess).

Do provisional patents get published?

A provisional patent doesn’t get published till a complete application is filed and it reaches the stage of publication (normally around 18 months after initial filing). Once a complete patent application is filed, both the provisional and the complete patent application will be published and accessible on Indian patent office website.

However, a provisional application which isn’t followed up by a complete patent application, will get abandoned and won’t be published. Hence, you may be able to refile the same provisional patent application later, just in case you missed the 12 month deadline to file a complete patent application.

Examples of provisional patent

Some examples of inventions that can be filed as a provisional patent in India include:

Mechanical devices: E.g. a new type of bicycle, a redesigned engine or a unique hand tool.
Software and technology: E.g. an innovative cybersecurity solution, integrated software-hardware inventions.
Medical devices: E.g. a new type of prosthetic limb, a diagnostic tool or a new surgical technique.
Consumer goods: E.g. a new type of kitchen appliance, a novel sports equipment or a new type of furniture.
Chemical compositions: E.g. a new type of fuel, a novel cosmetic formula or a new type of agriculture chemical.

It is to be noted that the invention should meet the patentability criteria for it to be considered patentable.

How can I track my provisional patent application in India?

Tracking your provisional patent application in India is a relatively straightforward process. Below is a step-by-step guide on how to track your provisional patent application in India:

1. Visit the official website of the Indian Patent Office, and visit the Patent Application Status option.

2. Enter the patent application number.

3. Once the information has been entered, click “Show Status” to retrieve the status of your provisional patent application.

4. The page will load displaying the status of your provisional patent application. If the application is published, you will be able to view documents and/or examination reports as well.