Articles > Intellectual Property

Should I file a provisional patent application?

November 18, 2020   Brigid NelmesPhilip Evangelou

A provisional application reserves the date for a future patent application. It does not itself provide the protection of a patent but it gives you a priority date so that your future complete application is essentially backdated to that time. 

To benefit from the priority date provided by a provisional application, a standard or innovative patent application must be filed within 12 months of the priority date.

What are the benefits of a provisional patent application?

A provisional application is an inexpensive option to secure your place as the first-in-time to patent an invention and protect you in any disputes about who invented the product first. Consequently, if your product is in a highly competitive and fast-moving industry, a provisional application can be very worthwhile. 

The provisional application gives you the benefit of the priority date without committing to the more expensive and lengthy patent application process straight away. It gives you 12 months to consider whether patent protection is the best means for you to protect and commercialise your product. 

Additionally, the technical and scientific details of your application will not be publicly disclosed following the provisional application. 

So, if you’re worried about your competitors but you’re not sure yet if patenting is worth the time and money, filing a provisional application could be the best option for you. 

What other options do I have?

If you are certain you want to proceed with the patent process, you can look at filing for an innovation patent or standard patent from the outset. 

An innovation patent provides you with protection for 8 years and has a faster and cheaper process than the standard patent application. This type of patent has a lower threshold of inventiveness and is useful for fast-moving industries where the product may have a short market life before being superseded. Innovation patents are currently being phased out and cannot be filed after 25 August 2021.

A standard patent has a longer processing period. However, it protects your product for up to 20 years. 


A provisional application is a good option for inventors who want to secure a priority date in a competitive industry without committing to the more expensive and lengthy complete patent application process. If you are unsure about whether patenting is the best option commercially for your product, a provisional application can be useful in reserving a priority date and granting you 12 months to consider whether or not to proceed with the patent application. 

If you need assistance with a provisional application, get in touch with us via the contact form or by calling 1300 337 997. 

About Brigid Nelmes

Brigid NelmesBrigid is a legal intern at OpenLegal, working with our legal content team. She is currently completing her Bachelor of Laws and Bachelor of Arts (International Studies) at the University of Technology Sydney. Her interests are in digital/privacy and startup law.

About Philip Evangelou

phillipPhil is a director at OpenLegal. He has over 16 years experience working in private practice and in-house counsel in Sydney and London, giving him expertise in employment law, IP, finance, leases, dispute resolution, insurance and contracts.