Whether patents will be truly effective in keeping competitors away from your ideas depends, amongst other things, on how well your provisional patents are written and to what extent they are drafted to anticipate how copiers might try to get around them.

The provisional patent application process

provisional patent application process

Lodging an Australian provisional patent application is usually the first step in obtaining one or more patents anywhere in the world and lasts for 12 months. The provisional patent application is designed to allow an inventor to develop their idea and the ways in which it can be further protected with the assurance of a filing date on their invention. The filing of the provisional patent application creates a priority date, where any subsequent patent applications may claim priority to this first date, that is, the priority date is the first record of your invention having been filed.

The next process usually performed after the lodging of a provisional patent application is a patent search to attempt to identify relevant prior art. This will give you an indication of how likely it is that your patent application will succeed, and how to prosecute your patent application in later stages of the application process.

To pursue further patent protection, a complete application will then have to be filed within 12 months of filing a provisional patent application. This can take the form of a PCT application that will mature into national phase applications lodged in the countries in which you seek protection, or direct applications filed individually in the countries you elect.

Drafting a provisional patent specification

There are numerous factors to take into consideration when drafting provisional patents:

The claims in your provisional patent application should generally be drafted in broad terms to afford you the widest protection against imitation. Over-specifying and overlooking different versions of your invention imposes undue limitations that can provide loop holes that infringers can exploit to make something very similar to your product.

A common misconception is that patent claims do not change from the way they are initially drafted. During examination, patent claims normally have to be amended to differentiate from what has been done previously, known as the "prior art". Some amendments may be of little consequence while others may render your patent completely ineffective.

The catch is that the kinds of changes you are allowed to make to amended specifications will depend on the information that has been included in your provisional patent application (if you are relying on the provisional application filing date).

Professional services

provisional patent application process

As you can see, it is crucially important to spend the time to identify the angles from which competitors may approach and to shield the idea as comprehensively as possible from the beginning. The risk of spending significant amounts of money on patenting your idea, only to be side-stepped by a clever copier at the last moment, needs to be mitigated as much as possible. This is why it is vitally important to have your provisional patent application professionally prepared by an insightful patent attorney.

Important Disclaimer: The information on this website is not legal or professional advice. The information may:

  1. not be correct;
  2. only relate to the law or practice in a given country; and/or
  3. be outdated.