What is a provisional patent?

A provisional patent is nothing but a ‘provisional patent application’ which is filed to quickly secure an earlier filing date. A provisional patent application in India doesn’t need to include all the aspects of the invention and can exclude parts like claims, abstract, etc. However, the provisional application needs to include the description and drawings related to the invention.

A provisional patent application in India also needs to be followed up with a complete application within 12 months, otherwise the provisional patent application is considered abandoned.

Further, the application for a provisional patent in India needs to ensure all the aspects of the invention are sufficiently disclosed at the time of filing of the provisional patent application itself, as the priority rights may not be extended to anything not included in the provisional patent application itself.

Does India have provisional patent applications?

Yes. In India, patent applicants have the option to either file / apply a provisional patent application or a complete patent application to initiate the patent filing process. A provisional patent application be filed rather quickly as an initial step towards the process of getting a patent in India and secure the important priority date.

What is the purpose of a provisional patent?

A provisional patent application allows an inventor to secure an early filing date for their invention without the need to file a full, complete / non-provisional patent application. It's a cost-effective way to establish an early priority date, giving the inventor an additional year to refine the invention, assess market potential, seek funding, or explore licensing opportunities. It also allows the inventor to use the term "patent pending" in connection with their invention.

What is the cost of provisional patent application in India?

The provisional patent application filing cost in India is a combination of government fees and professional fees. The government fees depend on the type of applicant filing the application and ranges from ₹ 1,600 to ₹ 8,000. The government fees for different applicant types are provided below:

The professional fee for drafting and filing a provisional patent application starts at ₹ 5,999 for the basic plan and 12,999 for Pro plan for individuals, startups and MSME's. So, the total cost for provisional patent application filing in India can start at ₹7,699 for the basic plan and 14,699 for individuals, startups and MSME's. Please note that there are additional costs involved to get a patent in India as it includes additional steps like filing a complete patent, requesting for examination (RFE), responding to examination reports (FER reply), attending hearings, renewals, etc.

How long does it take to apply for a provisional patent in India?

Filing a provisional patent application essentially involves two activities, i.e. drafting the provisional patent application and filing it with the patent office. The drafting of the provisional patent can take between 2-7 working days depending on the complexity of the invention. Whereas the filing of the provisional patent application can typically be done within 1 working days.

How fast can you file a provisional patent in India?

A provisional patent application can be filed rather quickly. Ordinarily, it can take anywhere between 2-7 working days to prepare and file a provisional patent application in India depending on the complexity of the invention.

Is it easy to file a provisional patent?

Filing a provisional patent is generally simpler and requires less detailed information than a non-provisional patent application. However, the ease of filing can depend on the complexity of the invention and the applicant's familiarity with the patent process. While individuals can file on their own, seeking professional help can ensure that the application adequately protects the invention.

How Long Does it Take to Get a Patent Pending Status?

As soon as your patent application is filed in India and the application number issued, the patent application can be said to be 'Patent Pending'.

What happens once a provisional patent application is filed?

Once a provisional patent application is filed with the Indian Patent office, a patent application number is generated. The provisional patent application needs to be followed up by a complete patent application within 12 months to continue the patent application forward.

Does provisional patent expire?

Yes, provisional patents expire. They last only 12 months from the filing date and cannot be renewed. If a non-provisional application is not filed within this period, the provisional application lapses, and the inventor loses the early filing date established by the provisional application.

Can a provisional patent be rejected?

A provisional patent application isn't examined at a substantive level. The patent office will typically accept the provisional patent application (if filed online with all documents), unless there are some missing details or documents. Once a provisional patent application is filed, a complete patent application has to be filed within 12 months, otherwise, the patent application will get abandoned.

Can I refile my patent application if my earlier provisional patent application got abandoned?

Yes. If you had earlier filed a provisional patent application but failed to file a complete patent application within 12 months, your patent application in India would have been abandoned. Since, your patent application got abandoned before it was published (18 months ordinarily), your earlier abandoned application will not act as prior art for the new application which you file. The inventor will lose the priority date established by the earlier filed provisional application, and any subsequent patent filing will need to establish a new filing date.

Can I extend my provisional patent?

There is no provision to extend the 12-month lifespan of a provisional patent. The inventor must file a non-provisional patent application within this period to benefit from the earlier filing date provided by the provisional application.

Can I apply for a provisional patent myself in India?

Yes. A provisional patent application can be applied / filed by the inventor / applicant themselves. There is no mandatory requirement to utilize the services of a patent agent or law firm.

But keeping in mind that patent drafting requires a techno-legal perspective, it is recommended to engage a patent professional with experience.

However, if you have budgetary constraints, or have enough experience of drafting patent applications, you may opt for applying the patent application yourself. In such cases, you may consider getting an patent expert to review your patent specification draft. The review option (offered by some patent agents in India), will be useful to improve the quality of your provisional patent draft.

Can you sell a provisional patent?

Yes, it is possible to sell a provisional patent application. However, it also depends on someone who is willing to buy it at such an early stage, where only the provisional patent application is filed.

The chances of selling are generally higher when the invention is either granted or the technology is very innovative, with a good chance of an eventual grant.

Buying and selling of patents is like buying and selling of any other product or service. Generally, buyers will see more value and you can get a better deal when the patent is granted. However, someone may still buy based on a provisional patent application if they see a future potential in the technology.

Therefore, it is possible that you will be able to sell it even after filing a provisional patent application but the percentage of cases at this stage would generally not be very high.