Provisional Patent Applications: What Australian Businesses Need to Know
If you’ve got an invention and you’re serious about protecting it, filing a provisional patent application is your first step.
But here’s the thing: most businesses don’t fully understand what a provisional patent application does—or worse, they think filing one means they’re “patented.” Not quite.
A provisional patent application is a temporary placeholder that locks in your priority date while you figure out the next steps. It’s flexible, relatively cheap, and lets you say “patent pending” while you assess whether your invention has legs.
If you’re an Australian business with a new invention, here’s everything you need to know about filing a provisional patent application—including when to file, what happens next, and whether you should do it yourself or get professional help.
What Is a Provisional Patent Application?
A provisional patent application gets you pending patent rights around the world for 12 months.
It is typically the first patent application you file and is the basis for future patent applications that you file in each country of interest.
Think of a provisional patent application as planting your flag—you’re telling the world “I was here first.” This matters because patents are granted based on the first person to file for patent protection.
What Does a Provisional Patent Application Let You Do?
Once filed, you can publicly disclose your invention (e.g., sell, market etc.) without jeopardising your chances of patent protection.
Use “Patent Pending” to show investors, partners, or competitors that you’ve taken steps to protect your invention.
Secures an early priority date so that you predate later-filed applications.
Buys you time to refine, test, and commercialise your idea before committing to full patent costs.
Should You File a Provisional Patent Application?
Filing a provisional patent application isn’t mandatory—but if your invention has commercial potential, it’s a smart move.
Here’s why:
1. It Protects Your Idea Before You Share It
Once you disclose your invention (e.g., pitch it to investors, publish it online, or sell a product), your ability to patent it may be lost in most countries. Filing a provisional patent application first allows you to then safely disclose your invention.
2. It Lets You Test the Market Without Risking Your IP
Not every invention is worth patenting. A provisional patent application gives you 12 months to figure out:
Is there demand?
Can you manufacture at scale?
Will customers pay for it?
If the answers are “yes,” you can more confidently move forward with the next stages of patent protection. If not, you can cut your losses before spending big on multiple national patent applications.
3. It Helps Attract Investors and Partners
Investors take IP seriously. Having a “patent pending” status from a provisional patent application can boost your credibility and increase valuation.
4. It Gives You Flexibility
A provisional patent application doesn’t lock you to a specific embodiment of your invention. You can continue to refine the invention and include any modifications in your subsequent patent application(s).
What Should Be Included in a Provisional Patent Application?
A provisional patent application doesn’t require formal claims, but that doesn’t mean you can be lazy with it. A vague or incomplete application can hurt you later when you file a full patent.
At a minimum, it is strongly recommended that the following be included in your provisional patent application:
✅ A detailed description of how your invention works
✅ Diagrams, drawings, or examples to illustrate key features
✅ Any variations or alternative implementations
✅ Broad patent claims which cover alternatives and future improvements
Common Mistakes to Avoid
❌ Filing something too vague—if the details aren’t there, they’re not protected.
❌ Forgetting alternative designs—if your final product changes, it might not be covered.
❌ Relying on a DIY patent template—a weak provisional patent application can ruin your chances of getting a strong patent later.
What Happens After You File a Provisional Patent Application?
Your 12-month countdown starts the moment you file a provisional patent application. You now have three options before the deadline:
1. File National Patent Applications
Ultimately, you will need to file individual patent applications in each country of interest.
Costs can add up so you need to think carefully about which countries are most important for your invention.
2. File a PCT Application
If you need more time and want to keep your options open, you can file a PCT application to keep your rights pending in 155+ countries around the world for another 18 months.
However, the PCT application will expire and you will ultimately need to file individual patent applications in each country of interest.
3. Let the Provisional Patent Application Lapse & File a New One
If your invention is still confidential and you need more time, you can let your provisional patent application expire and file a new one—but you’ll lose your original filing date.
Should You Hire a Patent Attorney?
If your invention is valuable, getting professional help from the right patent attorney is worth it.
A well-drafted provisional patent application can:
✅ Maximise your coverage—ensuring your invention is fully protected
✅ Give you flexibility—so future improvements aren’t excluded
✅ Improve your chances of getting a strong patent later
A poorly drafted provisional patent application, on the other hand, can kill your chances of securing meaningful protection.
Additionally, if you file a subpar provisional patent application and then publicly disclose your invention, you might not actually be covered. In such situations, your public disclosures can ruin your ability to subsequently apply for the coverage you need.
Final Thoughts: Is a Provisional Patent Application Right for Your Business?
If you’re an Australian business with an innovative product, filing a provisional patent application is a low-cost way to secure your priority date while you figure out your next move.
✅ If you’re about to disclose your invention—file a provisional patent application first.
✅ If you need time to refine your product—a provisional patent application gives you 12 months.
✅ If you’re serious about protecting your IP—make sure your provisional patent application is drafted properly.
Want to discuss your provisional patent application? Get in touch, and we’ll help you navigate the patent application process the right way. 🚀
