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What is Provisional Patent?
A provisional patent application allows up to one year of patent protection on your idea. This provisional patent option provides inventors the low cost option for one year to protect their idea while the inventor performs their research to determine whether they want to move forward with their invention or not. Before that one year is up you must file for a non provisional patent or lose the provisional patent starting date protection.
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To file a provisional patent, you must submit several documents. These documents form the basis of the patent grant process and determine the invention’s scope and use. Here are the documents required to apply for a patent with provisional specification,
- Form 1: Application for Grant of Patent
- Form 2: Provisional Specification
- Form 5: Declaration of Inventorship
- Form 26: Power of Attorney for Patent Attorney/Agent (optional)
While a complete patent application requires a detailed description, claims, drawings, and other technical information, a provisional application allows for more flexibility. Here’s what you can typically include:
- Title of the Invention: Clearly and concisely describe your invention.
- Technical Field: Specify the technological domain to which your invention belongs.
- Background: Briefly explain the existing problems or limitations addressed by your invention.
- General Description: Provide a broad overview of your invention, including its purpose, functionality, and main components. Drawings or sketches can be helpful for visual representation (optional).
Some eligibility is required to file a provisional patent application. This includes inventiveness, novelty, description, etc. Here are the key eligibility requirements to obtain a provisional patent.
- Novelty: The invention must be entirely new and not publicly known before the filing date of the provisional application. This includes any disclosures through publications, presentations, sales, or public use.
- Utility: The invention must possess a practical application and be useful. Abstract ideas or purely scientific principles generally do not qualify.
- Description: The provisional application description should be sufficient for someone skilled in the relevant field to understand how to build and use the invention. This includes details on the invention’s components, functionality, and assembly.
- Inventiveness: The invention cannot be an obvious advancement from existing knowledge within the same field. It should represent a significant inventive step beyond what would be expected by a skilled person.
The following benefits you can get as a result of obtaining a provisional patent for your invention,
- Establish Priority Date: The most significant advantage of a provisional application is securing the priority date of your invention. This date becomes crucial if someone else files a patent application for a similar invention later. Priority rights are obtained based on the earliest filing date, ensuring your claim.
- Having Time for Development: A provisional application provides a 12-month to develop, test, and refine your invention. This valuable time allows you to gather market research and assess commercial viability and strategies for a complete patent application with a more comprehensive description and claims.
- Cost-Effective Option: Compared to a complete patent application, filing a provisional application is significantly cheaper. This cost-effectiveness is especially helpful for startups and individual inventors with limited resources.
- Attract Investors and Collaborators: A provisional patent application demonstrates your commitment to protecting your invention and can be a valuable asset when seeking funding or attracting potential collaborators.
How to file a Provisional Patent Application in India?
Follow these steps to apply for a provisional patent and secure intellectual property rights,
Before applying, ensure your invention's novelty by researching registered patents and literature. This boosts your chances of approval.
Complete Form 1 for the application and Form 2 for the provisional specification. Attach all documents, file with the patent office, and pay the fees.
Frequently Asked Questions (FAQ's)
It is not necessary to visit the patent office to file the application as an online filing facility is provided. Only in case the application is required to be filed offline, the same can be filed physically at the counter of the Office. Moreover, all the communications with the office are made through emails. However, hearing proceedings relating to patent application can be attended with prior appointment on any working day during prosecution stage.
A patent application can be filed either by the true and first inventor or his assignee, either alone or jointly with any other person. However, the legal representative of any deceased person can also make an application for a patent.
A patent application can be filed with the Indian Patent Office either with provisional specification or with complete specification along with fee as prescribed in schedule I. In case the application is filed with provisional specification, then one has to file complete specification within 12 months from the date of filing of the provisional application. There is no further extension of time to file complete specification after expiry of said period.
Yes, India has four patent offices located at Kolkata, New Delhi, Mumbai and Chennai. Each office has a separate territorial jurisdiction. The appropriate office for all proceedings including filing of the application depends normally where the applicant/first mentioned applicant resides/has domicile/has place of business/has origin of invention. In case of foreign applicants, it depends on the address for service in India given by such applicant.
The types of applications that can be filed are:
A) PROVISIONAL APPLICATION: Indian Patent Law follows first to file system. A provisional application is an application which can be filed if the invention is still under experimentation stage. Filing a provisional specification provides the advantage to the inventor since it helps in establishing a ―priority date of the invention. Further, the inventor gets 12 months’ time to fully develop the invention and ascertain its market potential and to file the complete specification.
B) ORDINARY APPLICATION: An application for patent filed in the Patent Office without claiming any priority either in a convention country or without any reference to any other earlier application under process in the office. Such a type of application is known as an ordinary application.
C) CONVENTION APPLICATION: An application for a patent filed in the Patent Office, claiming a priority date based on the same or substantially similar application filed in one or more of the convention countries is known as a convention application. In order to get convention status, an applicant should file the application in the Indian Patent Office within 12 months from the date of first filing of a similar application in the convention country.
D) PCT INTERNATIONAL APPLICATION: An Application filed in India as Receiving Office (RO) under Patent Cooperation Treaty is an international application which can be filed in more than 150 countries by a single application.
E) PCT NATIONAL PHASE APPLICATION: When an international application is made according to PCT designating India, an applicant can file the national phase application in India within 31 months from the international filing date or the priority date, whichever is earlier.
F) PATENT OF ADDITION: When an invention is a slight modification of the earlier invention for which he has already applied for or has obtained patent, the applicant can go for a patent of addition if the modification in the invention is new. One of the benefits of filing a patent of addition is that there is no need to pay a separate renewal fee for the patent of addition during the term of the main patent and it expires along with the main patent.
G) DIVISIONAL APPLICATION: When an application claims more than one invention, the applicant on his own or to meet the official objection on the ground of plurality or distinct invention may divide the application and file two or more applications, as the case may be for each of the inventions. This type of application, divided out of the parent one, is known as a Divisional Application. The priority date for all the divisional applications will be the same as that of the main (the Parent) Application (Ante-dating).
After the grant of patent, every patentee has to maintain the patent by paying renewal fee every year as prescribed in the schedule I. For the first two years, there is no renewal fee. The renewal fee is payable from 3rd year onwards. In case the renewal fee is not paid the patent will be ceased.
A request for restoration of patent can be filed within 18 months from the date of cessation of patent along with the prescribed fee. After receipt of the request the matter is notified in the official journal for further processing of the request.
A Patent agent is a person registered with Indian Patent Office whose name is entered in the patent agent register after being declared qualified in the patent agent examination conducted by the patent office and who is entitled—
(a) to practice before the Controller.
(b) to prepare all documents, transact all business and discharge such other functions as may be prescribed in connection with any proceeding before the Controller under this Act.
Following documents have to be submitted in original by patent agent after filing them electronically:
(a) The Authorization of Patent Agent or Power of Attorney.
(b) Proof of the right to make an application.
(c) Deed of assignment, certificate regarding change in name of the applicant, license agreement.
(d) Declaration of inventor-ship.
(e) Priority document.
Yes, the Government of India has formulated schemes to spur the innovative capabilities of the innovators who are from MSME‘S and Start-ups.
(i)MSME’s: A 50% fee concession is provided for MSMEs vis-à-vis large entities on patent filing fees.
(ii) A Scheme for facilitating Startups Intellectual Property Protection (SIPP) has been launched for encouraging innovation and creativity of Startups.