IPRPatent

Provisional Patent in India: A Complete Overview

calendar27 Apr, 2020
timeReading Time: 8 Minutes
Provisional Patent in India

Intellectual Property is protected in the form of Patents when a person registers a Patent under the Patent Act, 1970. Registration of a Patent prevents other individuals from infringing the new invention of the Patent holder. A Patent may be obtained on a Design or a process. Under the Patent Act, 1970, there are two categories of Patent specifications in India. Under Section 9 of the Patent Act, 1970[1], the Patents are specified under two categories which are Provisional Patent and Complete Patent. In this article, we will discuss the procedure for filing the Provisional Patent in India.  

What is a Provisional Patent?

Patent is an exclusive legal right of an inventor that allows or grants the inventor the legal authority to forbid other persons from using or making a specific invention. When an inventor makes an invention, and the invention has reached a phase where the invention is not totally complete but can be revealed on paper. So, in such a situation, the inventor files a Provisional Patent application for claiming a priority date for the invention.

The Registration of Provisional Patent in India is the initial step towards filing of a Patent. The Provisional Patent application is a short summary of the Patent which discloses the nature or essence of the invention of the inventor. It is basically an initial application which is filed before filing the complete specification of the Patent. The Provisional Patent application just explains the Patent in brief but not entirely.

The filing of application of Provisional Patent in India simply means that while disclosing the invention, the formal claims of the Patent are not needed to be submitted. An application of Provisional Patent must be followed by an application of complete specification of Patent. The complete specification of the Patent should be filed within 12 months from the date of filing of the Provisional Patent applicationFurthermore, if the complete specification of Patent is not filed within the prescribed time by the Patent holder of Provisional Patent, the application shall be considered to be abandoned. The filing of an application of Provisional Patent is very useful for the inventors as it locks a priority date for the Patent, and the invention is secured from being copied or claim by any third person.   

What are the primary differences between a Provisional Patent and a Complete Patent application?

The differences between Provisional Patent and Complete Patent applications are as follows:

  • A Provisional Patent application can be filed even when the idea of the invention is not completely matured. On the other hand, the Complete Patent can only be filed when there are complete details of the claim in the Patent specifications. There is no scope of any further developments in the Complete Patent.
  • An application of Provisional Patent is comparatively less expensive as compared to the application of Complete Patent. The Provisional Patent does not include all the parts of the application of Patent, and hence, the amount is less as compared to the Complete Patent application. Though, the statutory fees for both the applications are the same. 
  • Although, both the applications, i.e., Provisional and Complete applications, are used for claiming priority. Any foreign application filed like PCT (Patent Cooperation Treaty) application or an international application is mandatorily needed to be accompanied by the complete specification of Patent only.
  • The filing of the complete specification is mandatory to secure a Patent and for existing independently in the future. There will be no existence of the Provisional Patent if the Complete patent application is not filed with the Indian Patent Office (IPO) within 12 months. The complete Patent, if not filed in 12 months, the application of Provisional Patent will be considered as an abandoned application.
  • The Provisional Patent application need not include all the abstracts and claims as compared to the complete specifications filed with the complete Patent application with the Indian Patent Office.

What documents are required to file a Provisional Patent Specification?

The following documents must be file properly in the prescribed order for a Provisional Patent Specification application:

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

What are the components of an application of Provisional Patent in India?

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

components of the application of Provisional Patent in India

Title of Invention

The Provisional Patent Specification application should commence with the title of the invention. The title of the convention should fairly capture the features of the invention. The title should be brief and to the point. It should come under fifteen words. The name of the inventor, the term “Patent,” the abbreviations like “etc.”, any fancy words or words in several languages should not be used in the title of the invention.

An example of a Title of Patent is as follows:

  • An insecticide containing A, B, C, or;
  • A mechanism including an automatic feedback circuit.

Description of Invention

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

The description is filed as follows:

  • Preamble

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

  • Field

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

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

  • Object

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

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

Background of Invention & Prior Art

This part of the application describes the state of an art parallel to or closely similar to the invention. While mentioning the prior art or closest filed Patent, the applicant should describe the nature of similarity and how the invention of the applicant stands apart from other inventions.

Read our article:Detailed Process of Patent Registration in India

What is the procedure for filing Provisional Patent?

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

procedure for filing Provisional Patent
  • Downloading of required Forms

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

  • Filling the Relevant Details in the Forms

All the required information in the forms should be filled by the inventor or by the agent of the inventor. The details include the title of the invention, name of the inventors or applicant, type of application of Patent. The signature of the applicant is required at the end of the form. In Form 2, the applicant is required to write Provisional Specifications of Patent, the title of the invention, the name of the applicant, and a statement declaring that the following specifications describe the nature and essence of the invention.

  • Describe the Invention

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

  • No requirement of Claims

In the Provisional Application, there is no need to write the claims related to the Patent. The claims are required to be filed with the complete Patent application.

  • Payment of Relevant Fees

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

What should an applicant keep in mind while filing an application for Provisional Patent in India?

An applicant filing an application of Provisional Patent in India should remember the following things:

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

What are the advantages of a Provisional Patent in India?

The advantages of Provisional Patent in India are as follows:

  • The application of Provisional Patent is cost-effective. The cost of filing an application of Provisional Patent is considerably low as compared to the filing of an application of complete Patent.
  • The technical requirements of the application are simplified. Hence, it takes much less time to prepare and file an application of Provisional Patent in India.
  • A Priority date is claimed by the inventor to file the complete Patent. The complete Patent should be filed within 12 months from the date of making the application of Provisional Patent. In case a dispute arrives in the future regarding ownership of Patent, the Indian Patent Office will give preference to the prior date application.
  • After filing of the application of Provisional Patent, the inventor can claim the invention as Patent Pending.
  • The inventor gets enough time to develop and improve the invention fully in 12 months.
  • The inventor can check the commercial potential of the invention within 12 months’ time period provided.
  • The inventor has enough time to conduct a proper market research. 
  • When the inventor has a Provisional Patent and desires to abandon trying to get a complete Patent, he/she can do so without worrying about the cost of the whole procedure.
  • There is no publication of the application of Provisional Patent; hence, the priority date of the application can be preserved by secrecy.

Conclusion

The application of Provisional Patent in India is in the form of a brief description of the invention, about the difficulties which the invention is in search to solve, the finest method to produce new goods, or to perform a definite industrial procedure. The application of Provisional Patent should be filed by the inventor immediately after he/she is clear about the invention to secure the novelty of the invention. The process of filing of application of Provisional Patent is time-taking and long-lasting. We at Corpbiz have experts to guide you with the process. Our experts will assist and help you throughout the process of filing an application of Provisional Patent in India. Our experts will ensure the timely and successful completion of your process.

Read our article: Procedure for Registration of Patent Agent in India

Sakshi Sharda

Sakshi Sharda has done BBALLB(HONS) and holds a strong knowledge on the matters pertaining to finance and law. From the past one year she is working as a legal advisor and in her leisure time she works on improvising her knowledge. Sakshi is spreading her knowledge by writing for Corpbiz.

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