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The power of the provisional patent application
Chris Baxter
Chris Baxter

There’s no denying it: the process of getting a patent is a marathon.

Whether you’re seeking a domestic monopoly or international protection, it can take years, and thousands of dollars, to gain enforceable rights over your invention.

And the truth is, not every idea will turn out to be worth the investment. A wide range of factors – including design or production challenges, changes in the market environment, and the introduction of alternative technology which renders an idea obsolete – can all bring the commercialisation of your invention to a grinding halt.

But it takes to time figure out which inventions have true commercial value and which should be left to fall by the wayside. And while you’re busy sorting the wheat from the chaff, how do you protect your invention and stop someone else storming the market with your big idea?

The answer is the provisional patent application.

What is a provisional patent application?

A provisional patent application is an ‘invention specification’, or description of your invention, that is lodged with IP Australia. It explains your invention in detail, defining all its technical parameters and setting out the various ways in which the design, system or technology can be used or applied.

Filing a provisional patent application does not, in itself, give you any rights. If you take no further action the application will lapse and your idea will become available for anyone to use.

However, if you decide to take things further and pursue a patent, either in Australia or overseas, your provisional application will form the foundation of your full application. The date of filing your provisional application becomes the ‘priority date’ for your full application. If your application then proceeds to grant, no one else can use, register or patent the same idea from that ‘priority date’.

Why bother with a provisional patent application?

If any aspect of your invention becomes public knowledge, or is registered or put into use by others before you file for a patent you could lose your rights altogether.

However, once you have filed a provisional patent application you can disclose your idea to potential business partners or investors (ideally under the protection of a confidentiality agreement) without jeopardising your chances of gaining a patent.

Basically, taking this step allows you to lay claim and protect your idea whilst you take advice, explore its potential and decide whether it’s worth the investment of a full patent application.

Making your application count

The filing fee for a provisional patent application is low, so some inventors think of it as a quick and economical tool they can use to protect their work – almost like buying an insurance policy.

But there’s a major potential pitfall here.

As we mentioned, if you decide to go ahead and file for a full Australian or international patent, or an innovation patent, your provisional application will form its foundation. The more detailed and well drafted your initial application is, the more likely you are to be successful in the prosecution stage, and to achieve complete and effective protection of your invention when your patent is granted.

However, the failure to include a complete and comprehensive description of your idea and all the ways in which it could be applied could leave you without the protection you need when you try to bring your product to market. It’s vital that your claims and descriptions are robust, detailed and properly drafted, or the patent, if you get it, may provide you with little or no protection against competing products.

In short, your provisional patent application is a crucial step towards protecting and profiting from your invention and it’s essential to find a balance between getting affordable protection while you explore your options, and ensuring you don’t miss out on the full scope of the monopoly you need to achieve commercial success.

For expert, strategic advice on protecting and profiting from your invention – at affordable, capped-fee pricing – call us at Baxter IP today.

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About the author
Chris Baxter
Managing Director, Patent & Trade Mark Attorney
Chris Baxter is a Sydney patent and trade mark attorney specialising in software patents, computer patents, medical device patents and engineering patents.

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