Almost every day I get a question from someone asking about protection with their provisional patent application (PPA). This is always tricky to answer because first we need to understand what is meant by the word “protection”. I usually try to break it down into two types of protection:
- Protection from people trying to copy your idea and sell a similar product, and
- Protection from people trying to copy your idea and patent it themselves (or block your patent).
Protection type 1 – A provisional application will not stop others from copying your idea and selling it themselves.
Remember a provisional patent application (PPA) is just an application. It is not a patent. This is a huge difference. Only a valid and approved patent can be used to sue someone for patent infringement so your PPA cannot but be used as an enforcement tool in this way. In order to enforce your rights and stop someone from copying you a full patent application (called the non-provisional patent application) needs to be filed and approved by a patent examiner. Even if you get through all of that you have to remember patents are not self enforcing. Just because you have a patent does not mean people will automatically stop copying you. You would have to take legal action against them to enforce your patent. (see my old post called “You have a patent – so what?”)
Protection type 2 – A provisional application
will should stop other people from trying to copy your idea and patent it themselves.
One of the main advantages of the provisional patent application (PPA) is the ability to lock in your filing date at the patent office. This is called your “priority date” and it is very important. If you filed your PPA on January 1, 2020 and your competition filed their patent application (either a PPA or full non-provisional) on January 2, 2020, your priority date is before theirs so you should be entitled to a patent, not them (note that I am using the word “should” because this is how the process should work, however, patent examiners are humans and sometimes mistakes are made). This priority date issue shows up in many different examples. In one case I was working with a university professor and we filed her PPA and then a few weeks later another university published work that was identical to her invention. If we had not quickly filed her PPA before the other groups work was published, that other group’s work would have been “prior art” to our patent application and it would have been rejected by the patent examiner. However, because we got our PPA filed first, we have a priority date that is before the publication from the other group.
As you can see filing a PPA offers a lot of value to establish your priority date and it can protect you from some things such as other groups trying to patent or publish on the same invention. But it does not offer any protection when it comes to enforcement. This is why I always try to clarify what people mean when they ask me if their provisional patent application will protect them.