The right and legal process to safeguard your invention and have complete rights over it will be filing a provisional patent. However, it has both the sides that states to file and not to file. Here is a blog that will help you analyse both and get the better conclusion. Read ahead!
Reasons why you might want to file a provisional application:
Here are reasons that says that you should file a provisional patent application.
Set your filing date in the Patent Office
The change to “First Inventor to File” on March 16, 2013 will make it much more important to file as soon as possible compared to the historical “First to Invent” system. The written disclosure of your invention should be filed as a provisional application once you have sufficiently detailed your invention to be able to explain it in fairly comprehensive terms. Once you do that, you will have one year to file a utility application. During the year, you can file one or more additional provisional patent applications if the invention develops sufficiently to be patentable, then roll all of the provisional applications into your final utility application.
Lack of Time
In the event that the publication or sale will take place on such a short deadline that no formal application can be prepared, the entire publication should then be filed as a provisional application, so at least the matter in the publication will be predated by the provisional filing date, even if additional material is later added. It should be noted, however, that the PTO examiners maintain the position that a disclosure that is not enabling as a patent application can nonetheless be enabling as a publication in some highly technical areas, particularly genetic engineering and other biotechnology). As a result, filing the publication as a provisional application might not provide the benefits one would want – if possible, file the formal application before publication!)
Time to study the market
Inventions can be evaluated and/or found to be marketable with a Provisional Application, at relatively low cost, while you and your attorney evaluate your invention and/or determine if there is a market for them. It is then possible to refine your formal application based on the results of the search, but you should keep in mind that any material not included in the provisional application will not qualify for the earlier filing date. No matter whether it’s not formally acceptable as a conventional patent application, your provisional should be as complete as possible.
Time to raise money
While you arrange for financing, you can file a Provisional Application and delay the cost of submitting a formal application. It is important, however, to include an “enabling” disclosure and not to omit any important information that will later be necessary. It may not be as good an idea as it seems at first glance to file a Provisional Application as time is running out to raise money for a conventional application. If you choose to proceed with a conventional application, the total cost will be higher. Upon expiration of the year period, you must cover not only the cost of the conventional US application, but also the cost of any foreign application you may decide to file (see below).
Reasons why you might not want to file a provisional application:
Here are reasons that says that you should not file a provisional patent application.
The provisional application is pointless if you’re ready to submit a formal application. In the best case, preparing a provisional application along with a conventional application will cost the same as preparing a conventional application alone – most likely more – and the filing fee will be the total of the provisional and conventional fees.
Although the Provisional Application won’t be examined, and even though you’ll get the effective filing date of the later conventional application (if you file the paperwork properly), its actual filing date in the USPTO is when the paper starts flowing. It is only a delay that will add to your delay if you intend to obtain patent protection as soon as possible by submitting a Provisional Application.
Unless you know what you have to include or what it will take to make it effective, the application might not work. Waiting to file a formal application with everything relevant might be a good idea since an incomplete provisional application is unlikely to result in an earlier filing date.
You’ll need time between filing your utility patent and having to file foreign patents – see below. It was normal for you to have a year to decide if you wanted foreign patent protection, and in which country, if you started with a utility patent application. In the case of a provisional application, you will need to file both a US application and a foreign application (PCT) at the same time.
You need a design patent
If the novelty in your invention resides in the appearance (rather than the function), then you will need to file the design application first. Provisional applications cannot be used as the basis for design applications. Consult a professional before filing if there is any doubt about what type of patent will be appropriate for your invention.
Thus, by analysing these points, fnd the right solution to file a provisional patent or not.