What is a Provisional Application?

A provisional application is a type of patent application which allows inventors and applicants to obtain a priority to file for a bundle of rights that protect the invention. Therefore, it is important to understand that, a provisional application itself is not an application to get the actual rights.

It is important to make the distinction between a “patent” and a “patent application.” A patent is a bundle of rights. A patent application is an application to secure the bundle of rights. A provisional application is a first step in the process, and only secures the priority to file for the rights (through a complete application) within a stipulated period of time (12 months in most jurisdictions). It means that an applicant will effectively book the “priority date” (the first date of filing – usually the date of filing of the provisional application), and will have the option of filing a patent application within the next 12 months.

Obtaining earliest priority date is important because in a first-to-file system (ex: India and US), the first one to file an application (whether provisional or complete) gets the right to stop others from practicing the same invention in the market and thereby gaining monopoly over that particular technology.

Like a complete patent application, a provisional application also includes a specification i.e. a description and drawings of an Invention, but it is not mandatory to include claims in a provisional application.

Claims define the boundary of the invention as claimed by the inventor. All the details in the specification should provide sufficient details to enable anyone reading the specification understand the boundary of the invention as defined by the claims. Usually, a provisional application is filed when the work on the invention is still in progress and the conceived information is not yet final. Therefore, it becomes difficult to define the boundary of the invention at that stage. However, it is important write a provisional specification with possible claims (phantom claims) in mind, and describe the invention as much detail as possible to support the phantom claims. It is also important to provide scope in the specification for including more details in the following non-provisional or complete application.

By Syed Murtuza

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