What is a provisional application?
Think of it as a placeholder while you decide whether to continue the patenting process.
It doesn't offer any patent protection to your invention.
If you decide not to pursue full patent protection after 12 months, your application will lapse. This means you won't be able to claim the provisional application's priority date.
What are the benefits?
By filing a provisional application first, you will:
- Have 12 months to decide if it's worth applying for a patent
- Have additional time to research and work on your invention
- Establish a priority date
- Indicate to competitors you intend to apply for a patent
- If applying for an international patent later, be able to request an international-type search to give you confidence before applying.
- Provide any level of protection for your invention
- Result in your invention details being published.
How does it impact my priority date?
The day that you first file your patent application is known as the priority date.
If you decide to go ahead with applying for a patent, you can use the priority date from your provisional application. This date is important because if there's a dispute over who came up with the idea first, the application with the earlier date has a greater chance of being granted.
You've developed a new process for pasteurising milk into cheese. You file for a provisional application with a priority date of February 2019. In January 2020, you file for a standard patent.
A competitor files their standard patent application for a similar process in August 2019, however they don't file a provisional application. Their priority date is August 2019.
When we examine both applications, you have a greater chance of being granted the patent because you have the earlier priority date — thanks to your provisional application.
Note: Any features claimed in your standard patent must be disclosed in your provisional application. If you add features later on that aren't included in the provisional, those features will have a later priority date.
How much does it cost?
It costs $110 to file a provisional application with us. If you decide to engage an attorney, the cost of drafting and filing a provisional application can cost somewhere between $4,000 - $7,000.
There will be additional costs associated with converting your application to a standard or PCT (international) application.
How does it work?
1. Submit your provisional application
Create an online services account and select 'Provisional patent' to submit your invention. You'll need to include your provisional written specification with your application.
When you file your application, we'll publish the invention title and applicant name in the Australian Official Journal of Patents (AOJP). However, we won't publish any technical or scientific details of your invention. We aim to process your application within one month of filing.
2. Convert to a standard application (optional)
If you decide to apply for a patent, you'll need to convert it into a:
- Standard application: For protection in Australia
- PCT application: For protection in other countries.
Due date: 12 months from the filing date of your provisional application (before 11:59pm AEST)
This step attracts an additional fee.
Once your application is formally filed, you can only make minor changes. You'll receive the priority date from your provisional application. If your application is accepted, your patent will be granted.