Patent

Provisional Patent Application: Can They Get Rejected?

calendar28 Apr, 2023
timeReading Time: 4 Minutes
Provisional Patent Application: Can They Get Rejected?

A patent can deliver innovators a competitive edge in the market and is a vital instrument for safeguarding an innovation. The innovation must satisfy particular requirements and be detailed in a patent specification in order to be granted a patent. While they work to develop and improve their invention, inventors might ensure a priority date by filing a provisional patent application, a form of the patent application. Even though provisional patent applications do not result in the issuance of a patent, they provide several benefits, including flexibility and cost-effectiveness.

What is a Provisional Patent?

According to the Indian Patent Act of 1970, a Provisional Patent application is a short and simple preliminary patent application that enables an inventor to set an early filing date for their idea. It is an optional filing that turns a provisional application into a full patent application by giving the applicant a 12-month window in time to submit an in-depth specification, which is a thorough document that fully defines the invention.

The provisional application acts as a stand-in for the full specification, allowing the inventor to utilize the phrase “patent pending” while honing and developing their idea. A provisional application of a Patent, unlike a comprehensive specification, is not required to include formal claims or an abstract, but it must describe the invention in enough detail for a person with ordinary skill in the art to comprehend and duplicate it.

Who Can File An Application For A Provisional Patent?

Any individual who asserts that an idea is original, truthful, and has not already been patented may submit a patent application, as stated in Section 6 of the Act. The legal representative of any deceased person who had the right to file for a patent before their passing may also do so.

Specification of Provisional Patent

A written description of the invention and any drawings required to comprehend it must be included in the provisional application. The invention’s description includes a statement of the invention’s field, context/background, and object. A cover page with the names of all inventors and other pertinent application information is also required. It is significant to note that claims, which are the precise legal wording that specify the scope of the invention, are not required in a provisional application. Only a non-provisional patent application must include claims. The preamble of the invention is also included.

Benefits of the Provisional Patent

The following are the benefits of a provisional patent:

  • Provides a practical means of establishing an early filing date.
  • Enables the inventor to work on and also improve the invention before the submission of a non-provisional application.
  • Lets the use of the phrase “patent pending” to deter potential future competitors.
  • Enables the inventor to protect the priority date of the invention, which is crucial in the event of any legal issues.
  • Gives the inventor a year to decide whether to pursue the non-provisional application or not.
  • Protects inventors while they work on your invention against imitations and other potential infringers.
  • Enables early consultations with possible partners, licensees, or investors, making your idea more valuable and appealing to potential buyers, licensees, and investors.

Can Provisional Patent Application Face Rejection?

A provisional patent application normally does not include claims in the patent application procedure; therefore, it cannot be technically rejected on this ground. An application for a patent must be examined before being approved or denied. The provisional specification of a provisional application cannot be used to reject or approve it since it does not fully describe the invention.

In essence, the preliminary specification serves as a stand-in to determine the invention’s priority date. It acts as the first stage in the application procedure for a patent, enabling inventors to obtain the earliest filing date. At the same time, they continue to develop and improve their idea before submitting a full patent application. A patent attorney may help inventors through the patent application process and ensure their application complies with all applicable legal criteria. Thus, it is vital to recognize that doing so can be beneficial.

Process of Filing Provisional Patent Application

For innovators looking to protect their idea, submitting a provisional application in India is an essential first step. It offers a first-priority date that can be utilised to obtain patent protection across numerous nations. The stages involved in submitting a provisional patent application in India are as follows:

  • Conduct a Thorough Search: Before submitting a provisional patent application, it is crucial to establish that the invention is original and non-obvious by doing a thorough search of the prior art. You can accomplish this by using online databases or by working with a reputable patent search company.
  • Create The Provisional Application: The provisional patent application must contain a thorough description of the invention, together with any necessary drawings and diagrams. A tentative specification that precisely outlines the invention’s parameters should also be included in the application.
  • Submit The Application: The provisional patent application can be submitted in person at the patent office or online through the website of the Indian Patent Office[1] (IPO). A declaration of inventor ship and a power of attorney, if necessary, must be included with the application along with the correct fee.
  • Perform A Patentability Search: It is advised to carry out a patentability search after submitting a provisional patent application to make sure the invention qualifies for patent protection. You can accomplish this by using online databases or by working with a reputable patent search company.
  • Change The Provisional Application’s Status to Non-Provisional: Within 12 months after the filing date, the provisional patent application must be changed to non-provisional status. This entails submitting a comprehensive specification that contains all claims and other crucial information.

Conclusion

In conclusion, a provisional patent application is a crucial starting step for innovators wanting to protect their innovation and obtain an early priority date. While a provisional application does not include claims and cannot be strictly rejected, it is crucial to ensure that the application is accurate and full in its description of the invention to establish a solid foundation for the entire patent application. In order to successfully navigate the patent application procedure, inventors can increase their chances of success by consulting a patent attorney for assistance and conducting a comprehensive search of the prior art. It is important to note that a provisional patent application is not a replacement for a full patent application; rather, it serves as a temporary measure to help inventors maintain their priority dates while they work to improve and develop their invention.

Read Our Article: Provisional Patent In India: A Complete Overview

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