How to Start a Provisional Patent

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Overview of Provisional Patent in India

Intellectual Property in India is protected in the Form of Patents when any person registers the same under the Patent Act, 1970. Patent Registration prevents the other individuals from infringing the invention of the holder of Patent. A Patent in India can be obtained on a Design or a process associated to such an invention.

Under the Patent Act, 1970, there are especially two types of Patent specifications in India. As per Section 9 of the Patent Act, 1970, the Patents are specified in two categories, which are Complete Patent and Provisional Patent. In the article, we will discuss the complete step by step procedure for filing a Provisional Patent in India.  

What is a Provisional Patent in India?

A patent is an exclusive legal right of the inventor of the invention that allows or grants him/her the legal authority to forbid all other persons from making or using a specific invention. When any inventor invents an invention, and the new invention has reached a phase where it is is not totally complete but is eligible to be revealed on the paper. So, in such a situation, the inventor is required to file an application of Provisional Patent in order to claim a priority date for the new invention.

In India, the registration of Provisional Patent is the initial phase towards the filing of a Patent. The application of a Provisional Patent in India is a short summary of the Patent which discloses the nature or essence of the new invention.

The filing of the application of a Provisional Patent in India simply means that while disclosing the new invention, the formal claims of the Patent are not required to be submitted. An application of a Provisional Patent in India should be followed by an application of the complete specification of the Patent. The complete specification of Patent is required to be filed within 12 months’ time period from the date of filing of the application of Provisional Patent in India.

Furthermore, if the complete specification of a Patent is not filed within the prescribed time period by the Patent holder of the Provisional Patent in India, the application will be considered to be abandoned. The filing of the application of a Provisional Patent in India is very useful for the inventors as it locks a date of priority for the Patent, and the new invention is secured from being copied or claimed by any third party. 

What are the Benefits Associated with Filing of a Provisional Patent in India?

Benefits of Provisional Patent

The main advantages of Provisional Patent in India are as follows:

  • The application of a Provisional Patent in India is also cost-effective. The cost of filing an application of Provisional Patent in India is considerably very low as compared to the filing of a complete Patent application.
  • The technical requirements of the application for Provisional Patent are very simplified. Hence, it takes less time for the preparation and filing of an application of Provisional Patent in India.
  • A Priority date is generally claimed by the inventor to file the complete Patent. The complete Patent is required to be filed within 12 months’ time period from the date of making the Provisional Patent application in India. In case any dispute arrives in the future regarding the ownership of Patent, the Indian Patent Office or IPO will give preference to the application with a priority date.
  • After filing of the application for Provisional Patent, the inventor can then claim the invention as a Patent Pending.
  • The inventor gets plenty of time to develop and improve the new invention fully in 12 months’ time period.
  • The inventor may check the commercial potential of the new invention within 12 months’ time as provided.
  • The inventor is provided with enough time to conduct a detailed market research.
  • When any inventor has a Provisional Patent and desires to abandon the same by trying to get a complete Patent for the same, he/she can do so without worrying about the cost of the overall procedure.
  • No publication is required for the application of Provisional Patent in India; hence, the date of priority for the application can be preserved by secrecy.

What necessary documents are required to be filed for a Provisional Patent Specification in India?

The following documents are required to be appropriately filed in the prescribed order for an application of Provisional Patent in India:

  • The application for Grant of Patent in Form 1 as prescribed under the Patent Act, 1970, and the Patent Rules, 2003;
  • The Provisional specifications of the Patent in Form 2 as prescribed under the Patent Act, 1970, and the Patent Rules, 2003;
  • The Declaration of Inventorship of the Patent in Form 5 as prescribed under the Patent Act, 1970, and the Patent Rules, 2003;
  • A Power of Attorney provided by the Patent Holder in Form 26 as prescribed under the Patents Act, 1970, and the Patent Rules, 2003. This Form 26 is necessary if the application of Patent is filed by a Patent Agent; otherwise, such a Form is not necessary;
  • The Statutory Patent Fees required in E-filling as prescribed under the Patent Act, 1970, and the Patent Rules, 2003. The mode of payment is electronic;
  • The corresponding statement of the application of any Foreign Patent and undertaking related to such an application in Form 3 as prescribed under the Patent Act, 1970, and the Patent Rules, 2003;
  • The document related to the date of Priority. This document is required to be used for international application or convention applications if the dates of priority of foreign applications are already claimed;
  • The Diagrams or Illustrations that related to the invention.

What are the main components of the application of a Provisional Patent in India?

Components of provisional patent

There are two main divisions of the application of Provisional specification which includes the Title and Description of the Provisional Patent. The main components of the application of Provisional Patent in India are as follows:

Title of Invention

The Specification of Provisional Patent application in India should commence with the title of the new invention. The title of the invention must fairly capture all the features of the invention. The title is required to be brief and to the point. It should come under the word limit of 15 words. The name of inventor, the term "Patent," other the abbreviations like “etc.”, any other fancy words or words in various languages should not be used in the title of the new invention.

An example of a Title of Patent is as follows:

  • An insecticide containing K, L, M, or;
  • A mechanism that includes an automatic feedback circuit.

Description of Invention

The description of a Patent begins with the Preamble and also consists of the object and field of the invention. The description of invention begins after the title on a new page. The application of Provisional Patent in India does not have to mention the claims.

The description of an invention is filed as follows:

  • Preamble

    The description of new invention starts with the Preamble in a Provisional Patent application in India. The example of a Preamble of invention is: ‘The following Specification defines the invention.'

  • Field

    The technical field to which the new invention can be linked to is required to be stated in this part of the application. The field part should be short and to the point. The crispiness of the field part is required for the primary purpose that it is usually easily identifiable that what classification of technology associated with the invention and the what is the actual nature of the new invention. The field part of invention should not limit the scope of the new invention, so the mentioning of the field is required to be done properly by the applicant.

    For example, the word or words “fluid or liquid dispensing appliances” is required to be used by the applicant in place of “tea dispensing appliance” as the use of the word tea will limit the scope of the new invention and will eliminate the other beverages like dispensing soda, coffee, etc.

  • Object

    The necessity of the new invention is shown under the Object part of the application of Provisional Patent in India. The benefits the new invention will bring about in the near future should be the primary solutions made by the new invention.

    The statements which can be further used in the object part of the provisional application include “The main object of the new invention is ...”; “Additional objects of the new invention are ...”

Background of Invention & Prior Art

This part of the provisional application describes the state of an art parallel to or closely similar to the new invention. While mentioning any prior art or closest filed Patent, the applicant is required to describe the nature of similarity between both and how the invention of the applicant stands apart from all other inventions.

What should an applicant is required to keep in mind while filing an application for a Provisional Patent in India?

An applicant filing an application of a Provisional Patent in India is required to remember the following things:

  • The application of a Provisional Patent in India is not the rough draft of the complete Patent. The application defines in detail the scope of the inventor’s invention upon which the whole process for the grant of the Patent will be dependent. Hence, the drafting of the application for Provisional Patent in India should be done clearly to the point with all the necessary specifications of Patent mentioned correctly in it.
  • The filing of an application for Provisional Patent in India should be considered as an initial phase in the filing of the application of Complete Patent and for the Patent Registration in India.
  • The Provisional Patent in India will be considered as abandoned if the specification of Complete Patent is not filed within the time period prescribed of 12 months.
  • A rough set of claims associated with the invention is required to be prepared by the inventor to conceptualize the new invention and understand the implications related to it.
  • Any new invention invented after filing of the application of Provisional Patent in India will not get the benefit of the Provisional Patent application.
  • The confidentiality of the application for Provisional Patent in India can be maintained as there is no publication of the same. However, disclosure of the essentials is made mandatory to avoid any further problem in the process of Patent Registration in India.

What is the procedure for filing a Provisional Patent in India?

The filing of the application of a Provisional Patent in India is nowadays an easy task in India. The procedure of filing the application of a Provisional Patent in India is as follows:

Process of filing Provisional Patent
  • Download the required Forms

    Form 1 and Form 2 are required to be downloaded from the official website of the Patent Office in India.

  • Filling of the Relevant Details in the Forms

    All the necessary information in the forms is required to be filled by the inventor or by the agent of the inventor. These details include the name of the inventors or applicant, the title of the invention, type of application of Patent. The signature of the applicant is required to be done at the end of the Form.

    The applicant is required to write all the Provisional Specifications of the Patent in Form 2, i.e., the name of the applicant, the title of the invention, and a statement declaring that the following mentioned specifications describe the nature and essence of the new invention.

  • Describe the Invention

    The description of the new invention is required to be made later on in Form 2. The description of the new invention is required to be written in own words of the applicants stating that how their Patent is different from the other Patents, how it is made, and how it functions. To make the new invention more understandable, the applicant can also include the diagrams, figures, or tables related to the Patent.

  • No requirement of Claims

    In the Provisional Patent Application in India, there is no requirement of writing the claims related to the Patent. The claims should be filed with the application of a complete Patent.

  • Payment of Relevant Fees

    The fees prescribed for the application of Provisional Patent in India is required to be paid by the applicant, and the application is to be submitted to the Indian Patent Office or IPO.

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Frequently Asked Questions

The term “Provisional Patent” denotes an Initial Phase towards the Filing of a Patent.

The term “Provisional Patent Application” denotes a short summary of the Patent which discloses the nature or essence of the new invention.

Yes, an individual needs a lawyer or an IPR expert to file a Provisional Patent in India.

No, not all lawyers can file a patent in India. To file an application of Patent for an inventor, or a Provisional Patent application in India, a lawyer is required to pass a test and should be registered with the Indian Patent Office.

A Provisional Patent Application or PPA provides the means to establish an early effective date of filing in a later-filed application of non-provisional Patent. It also allows the use of the term "Patent Pending" in connection with the description of the new invention.

Yes, a person can sell a Provisional Patent in India. Moreover, an applicant can also license the rights under his/her application of provisional Patent to another party.

The main difference between an application of Provisional Patent and a Non-provisional Patent application is that the application of Provisional Patent in India is never examined, whereas the application of Non-provisional Patent will eventually be examined by the authorities.

The steps in the Procedure are Download the required forms; Fill in the Relevant Details; Describe the Invention; No requirement of Claims; and Payment of Relevant Fees.

The components are Title of Invention; Description of Invention; and Background of Invention.

No, you cannot search a Provisional Patent online as it is not published.

Normally, the regulatory authorities take around 4 to 6 years to approve a Provisional Patent in India.

No, after filing the Provisional Patent, one cannot make any further change or modification.

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