Provisional patent applications in Australia
A provisional patent application is a first filing that fixes your priority date, lets you market your product as patent pending, and gives you twelve months to decide whether and how to go further. It's never examined, it never becomes a patent on its own, and it lapses after twelve months unless you act.
The filing itself is simple. The documents you file with are the hard part, and it's the part that determines what you can protect for the next twenty years.
“Warren was amazing to deal with and very generous with his knowledge , time and effort regarding my IP requests. I recommend him to anyone looking for an IP attorney or for any patent related work. Thanks Warren!”
- Mark Ipaviz
Written by Warren Wong
Registered Australian and New Zealand Patent Attorney and Trade Marks Attorney.
Three things a provisional gives you
A date. The novelty of your invention is judged against everything publicly available before your priority date. Anything published after it can't be used against you, including work by a competitor who was developing the same thing independently. Getting an early priority date can be of immense value.
A year. Twelve months to build, test, sell, raise money and find out whether this is worth pursuing, all without spending on the expensive filings yet. You can file a PCT application or standard applications at any point in that window and still claim back to your earlier priority date.
A veil of protection. Once you've filed, you can demonstrate the product, pitch it, and label it patent pending. Before you've filed, every public disclosure is a risk.
There's a quieter fourth benefit. Provisional applications aren't published, so nobody can see what you've claimed until publication at eighteen months from your priority date, and only then if you proceed. For twelve months your competitors know you've filed something and have no idea what.
What a provisional doesn't do
It isn't a patent. You have no enforceable rights and can’t sue anyone. The patent pending label simply acts as a deterrent.
Nobody examines it. IP Australia will not analyse your provisional and tell you whether your invention is patentable. To get that answer, we can request IP Australia conduct an international-type search on your provisional.
It only covers what you wrote down. If you file a short provisional and then spend the next twelve months improving the invention, those improvements don't get backdated to your priority date. They get whatever date they are first disclosed in any subsequent application.
Why the patent specification is the whole job
A patent specification describes how your invention works and defines the boundaries of what you're claiming. Drafting one well means capturing the underlying idea, not just the version sitting on your workbench.
The reason this matters so much comes down to one rule: You can narrow later. You can never add.
Years from now, a patent examiner will raise objections and you'll likely need to amend your claims. Every amendment has to be supported by something already described in your original specification. If a concept, phrase, or even a particular word isn't in that document, the amendment may not be available to you, particularly in jurisdictions like the EU.
So the specification you file on day one can set a ceiling on your protection in every country, permanently, before you have any idea which countries will matter.
That's the case for spending properly at this stage. A specification that describes one embodiment of a product, when the valuable protection should have covered a whole class of solutions, may not be fixable after filing. By the time anyone notices, the priority date has locked it in.
If your budget is tight, cut costs on country selection later. Don't pinch pennies here.
Better a house on solid ground than a mansion on a shaky foundation.
Should you file it yourself?
You can. IP Australia accepts self-filed provisionals and the official fee is only $100 at the time of writing.
Whether it's a good idea depends on what you're using it for. If you genuinely just want a date on the board while you decide whether the idea has legs, and you accept you may be re-filing properly in a few months, a self-filed provisional can sometimes be a reasonable holding move (just don’t disclose the invention in your title, since this gets published).
If you're thinking about relying on your self-filed provisional, don't. Drafting within the bounds and requirements of patent law and practice is a specific skill, and the failure mode is invisible. A self-filed provisional, particularly one churned out by AI, can look like a good one until the day it doesn't, which is usually three or four years later when an amendment you need turns out to be unsupported. In the scheme of things, the money you save is small, but the potential downside could be massive.
Talk to me before you decide against it. Knowing what a properly drafted provisional costs is worth the phone call.
What counts as disclosing your invention?
Your invention should be novel on your priority date. Disclosure before you file your provisional can destroy that.
Disclosures that catch Australian businesses out include:
Trade shows and demo days
Crowdfunding campaigns
Selling, or offering to sell
Conference papers, theses, journal articles
Social media posts and press coverage
Sending drawings to a manufacturer or supplier with no confidentiality agreement in place
Australia has a twelve-month grace period covering disclosures made by you or with your consent, provided you file a complete application within twelve months. Treat it as an emergency measure, not a plan. Most other jurisdictions aren’t so lenient, so a disclosure Australia forgives can cost you elsewhere.
Anything you tell me is confidential and protected by attorney privilege, so there's no risk in describing the invention before anything is filed. If you've already disclosed, say so early. There's sometimes still a route, and it gets narrower the longer we wait.
What happens at twelve months?
Before your provisional expires, you can file:
A PCT application to keep your rights pending in more than 150 countries for a further 18 months; and/or
Individual standard patent applications directly in each jurisdiction of interest.
Do nothing and the provisional lapses with your priority date attached to it. If you've been selling or otherwise disclosing your invention during those twelve months, that often means your invention can no longer be patented at all.
What does it cost?
I would budget for around $4,500, inclusive of IP Australia filing fees and GST.
That said, drafting prices vary widely and depend on invention complexity.
Cheap drafting is cheap because less thought goes into it. Given that the draft patent specification permanently caps your protection, this can be the worst possible place in the entire process to choose based on price.
If you want to save money, save it at the country selection stage, where the savings are often much more significant.
Frequently asked questions
How much does a provisional patent application cost in Australia?
Around $4,500 for a relatively straightforward invention (this figure includes IP Australia fees and GST).
How long does a provisional patent application last?
Twelve months from its filing date, and it can't be extended. Before it expires you need to file a PCT application or standard applications claiming its priority date, or the date is lost.
Can I sell my product while a provisional is pending?
Yes. Once you've filed, your priority date is locked in and you can sell, demonstrate and market freely, including labelling the product patent pending. Just remember that anything you add or improve after filing may not be covered by the provisional, so best to check with your patent attorney.
Is patent pending a legal right?
No. It means an application exists, nothing more. You can't enforce it against anyone. Its value is commercial: it deters copycats who don't want to invest in a product they may have to withdraw, and it reassures investors that you've started.
What happens if I miss the twelve-month deadline?
The provisional lapses, along with the priority date. If the invention has been publicly disclosed in the meantime, a missed deadline often means it can no longer be patented.
Can I file more than one provisional?
Yes, and it's common where the invention develops significantly during the year. A second provisional captures the improvements, and both can be consolidated into a single PCT or standard application. The improvements carry the later date, so this isn't a way of backdating anything.
Does a provisional protect me overseas?
Not directly, but it preserves your ability to seek protection overseas. Under the Paris Convention you can claim its priority date when filing in other countries within twelve months, either through a PCT application or by filing directly.
Can I change my invention after filing a provisional?
You can change the product as much as you like. What you can't do is claim the changes back to your original date. If the improvements matter commercially, they need their own filing and it would be wise to keep your patent attorney updated on these changes.
Before you file anything
The most useful conversation happens before the first filing. Book a complimentary call and we can discuss whether your invention seems patentable, what protection is realistically available, and what it will cost.