Provisional patent application
A provisional patent application in India is Form 1 filed with a provisional specification under section 9 of the Patents Act, 1970. It holds the filing date while the invention is still being completed. Company Suggestion files that specification and the complete specification that must follow within 12 months.
What is a provisional specification?
The inventor can file before every drawing and every example is finished. The provisional specification describes the invention in general terms. The filing date of that application is the date later used for novelty, provided the complete specification is filed in time and the invention it describes is the same invention.
It is not a granted patent, and it is not a twelve-month right to sue. Infringement remedies depend on a granted patent. Publication of the application, which is ordinarily at 18 months, is what makes the invention public in the register.
What does the filing contain?
The provisional filing is smaller than a complete application. It is not a one-line title.
- Form 1, the application for grant, signed by the applicant.
- Form 2, marked as a provisional specification: the title, the applicant, and a description of the invention.
- Form 3, if a corresponding application is or will be filed outside India.
- Form 26, when a patent agent files it.
- Drawings, if they are needed to understand what has already been made.
Form 5, the declaration of inventorship, is filed with the complete specification, not as a substitute for it.
What must follow within 12 months?
Section 9 gives twelve months from the provisional filing to file the complete specification. That document describes the invention fully, the best method of performing it, and the claims. If it is not filed, the application is abandoned.
The complete application is then examined only if Form 18 is filed within the request period. A provisional filing does not start examination by itself, and it does not extend the 20-year term. The term of a granted patent is still 20 years from the filing date.
What are the filing steps?
Company Suggestion handles the provisional filing in four steps.
- The invention, as far as it has been made, is written into a provisional specification.
- Form 1 and Form 2 are filed, and the filing date is recorded.
- The complete specification is drafted and filed within 12 months.
- Form 18 is filed so the complete application can be examined.
Frequently asked questions
4 questions cover the rules that decide this registration.
Is a provisional patent granted?
No. The Indian office accepts a provisional specification with Form 1. It does not issue a patent on that filing. The patent is considered only after the complete specification is filed and examined.
What happens if the complete specification is late?
Section 9 requires it within 12 months of the provisional filing. If it is not filed in that time, the application is abandoned and the filing date is lost.
Can the product be marked patent pending?
Yes, after an application has been filed. The words record that an application exists. They are not a grant, and they do not by themselves stop another person.
Is this the same as a US provisional patent?
No. A US provisional application is filed at the USPTO. An Indian provisional specification is Form 2 filed with Form 1 at the Indian Patent Office, and the complete specification is due within 12 months.