Provisional Patent

While applying for patent registration, one of the important legal documents to be filed is the provisional or complete specification. Specification may be filed either as a provisional or as a complete. A provisional specification is filed along with a patent application if the applicant feels that the invention has reached a stage wherein it can be disclosed on paper, but has not attained the final stage. Provisional specification is filed along with a patent application to secure a priority date for the application over any other application which could be filed in respect of the same invention being developed concurrently.

Reason to File Provisional Specification

Patent application must include a complete specification which is a techno-legal document that fully and in detail describes the invention and the best method of performing the invention. Complete specification is an extremely important document in the patent proceedings and must be drafted by an experienced Patent Attorney.

However, in some cases, the Inventor might feel that the invention and requirement for compiling a complete specification has not yet been achieved. In such cases, a provisional specification can be filed along with a patent application to secure a priority date for the application. On receiving the provisional specification, the Patent office would allot a filing date and application number to the patent application. However, any application accompanying a provisional specification is deemed to be abandoned if no complete specification is filed within twelve months from the date of filing of the provisional specification.

Contents of Provisional Specification

Provisional specification should contain the title and description of the invention. All provisional specification should start with a preamble “The following Specification describes the invention”. The description of the invention should start from the second page, starting with the field of invention and containing the background of the invention, the object of the invention and statement of the invention. Claims should not be included in the provisional specification, as it is normally included in the complete specification only. However, it is still advisable to include as much information as the applicant has at the time of filing.

Patent Filing Procedure

Patent laws in India are governed by the Indian Patent Act, 1970, which deals with the registration, renewal, transfer and protection of patent rights in India. For an invention to be patentable, it must be novel, have an inventive step and display industrial applicability.

  • 1

    Patent Search

    Prior to registration of any intellectual property right like trademark registration or design registration or patent registration, it is advisable to conduct a search of the public database. A patent search will help the Inventor or Patent Attorney determine the novelty of the patent and its obviousness. Also, a patent search will help discover inventions that are already registered, helping the Inventor better draft the patent application or extend the scope of innovation to distinguish from existing inventions.

  • 2

    Patent Filing

    Once a patent search is completed, the patent application must be drafted by the Inventor or a patent attorney. The patent application must specification, a legal document with scientific information constituting patent rights. Specifications play a major role in the patent application process and must be drafted by an experienced patent attorney. The details of the invention must be clearly mentioned along with various features in the invention. Patent specification are of two types, provisional specification and complete specification:

  • 3

    Provisional Specification

    A provisional specification can be filed by an Inventor when the invention has reached a presentable form but not the final share. A provisional specification helps to establish the priority of the Inventor over any other person who is likely to file an application for the same invention. On filing a provisional specification, the patent office provides a patent filing date for the invention. From the date of filing provision specification, the Inventor has 12 months to develop the invention and submit the complete specification. Provisional specifications are first filed for patent applications and mostly contain a brief description of the invention, without any claims.

  • 4

    Complete Specification

    After filing a provisional specification and obtaining a patent filing date, a complete specification must be filed within 12 months. Any patent application for which complete specification is not filed will be considered abandoned. Compete specification must contain title, preamble of invention, name, address and nationality of the applicant, field of invention, use of invention, prior art, problem to be solved, objectives of invention, general statement of invention, full description of the invention, best method of making the invention work, statement of claims, drawings and abstract. It is important that an experienced patent attorney prepare the complete specification, to avoid any errors.

  • 5

    Patent Publication

    After the filing of the patent application, if the application is accepted, the patent application is published in the patent journal. Patent applications will not be published for 18 months from the date of filing of the application of from the date of priority of the application, whichever is earlier. However, if the patent applicant wishes to speed up the process, Form-9 can be filed to request for publication at the earliest.

  • 6

    Patent Examination

    After patent publication, a request for patent examination must be filed within 48 months of the date of filing a patent application or date of priority of the application, whichever is earlier. On request for examination, the patent application will be taken up by an Examiner. The Patent examiner will determine if the patent application satisfies the novelty, inventive step and other criteria established for granting patent registration. In case of objections, the same will be raised by the Patent Examiner in the First Examination Report. Response to the objection raised in the First Examination Report can be filed within 12 months by the patent applicant.

  • 6

    Patent Registration

    On submission of a response to a First Examination Report, if the Examiner is satisfied that all criteria for grant of patent are satisfied, patent registration is granted. The term of validity of the patent will be 20 years from the date of filing of the patent application.

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