Can I get a provisional patent in Europe?

質問

Hi! I have heard a lot about provisional patent applications in the US, which are supposed to be really popular with startups. I'm not quite sure what the difference to a regular patent is, could you perhaps give some pointers? Also, since we are currently focusing our product development on the European market, what would be the equivalent in terms of European patents?

回答: 5 公開 & 0 非公開

A81310fe66
弁理士

Neither the European Patent Convention covering 38 Contracting States across Europe nor national patent laws provide for a provisional application in Europe. In fact the US provisional patent applications appears to be a quite unique - but not magic - instrument.
As already stated, to be effective, the US provisional application has to be as complete, accurate and thorough as a non-provisional application.
You could effect filing of a national patent application (e. g. a German patent application drafted in German or English) and subsequently (i. e. within one year of the first filing) filing a European patent application based on and claiming priority of the national application. Moreover, with regard to costs, your decision on the filing of the European patent application can be based on search/examination results from the national filing - something that cannot be achieved with the US provisonal application!
As your are based in Germany, you don't have to enage a patent attorney, but it is highly advisable to do so as some deficencies of an application cannot be fixed after filing and would, thus, be fatal.

Steven weinrieb
弁理士

A provisional patent application will never by itself lead to a patent - a provisional patent application enables one to file a patent application at the earliest possible time until, for example, they finalize development of their invention, or raise necessary funds, or to assess the commercial market. A provisional patent application must, however, effectively be as complete, accurate, and thorough as a non-provisioal application because it needs to provide an enabling disclosure so as to serve as a priority date document for the later-filed non-provisional application or a PCT application - also note that the non-provisional and/or PCT application must be filed within one year of the filing of the provisional application. Only by converting the provisional application to a non-provisional or PCT application, is one able to obtain a patent. In addition, note that once you file a provisional application, if you develop further improvements or embodiments of the invention, you can file additional provisional applications for such improvements or embodiments, however, your non-provisional or PCT application, which should obviously encompass all of your provisional applications, improvements, and embodiments, must be filed within one year from your first provisional application filing date.
As for provisional patent applications in Europe, they do exist - check with a European patent professional for specifics re European provisional applications.

F56b616a4f
弁護士

Hi! In addition to Steven developments and to answer your question regarding the existence of a potential system equivalent to the US Provisional Application system, I would say that this concept does not exist, strictly speaking, in Europe but in practice it is quite possible in some European countries to temporarily make a quick filing in a hurry then to regulate it – or not – in the following year. In France in particular, the law provides that the filing of a French patent application exists as soon as the applicant produce, in particular, a description of its invention or a reference to a previously patent application, without any required formalism. This means concretely that it is quite possible to file a "standard" technical text in order to qualify for patent protection and then complete the said text by a patent in good standing.

As the content of the description is not - yet - regulated, it is possible to file directly without any formalism, a scientific article, a medical study, a thesis statement, a technical book, the extracts of laboratory notebooks or a proposal under a provisional filing.

Simply, the main difficulty appears when the conversion of the provisional application in a regular one. Therefore, you have to adequately describe the technical characteristics of the invention and to reproduce at least one major claim in the text of the provisional application even though it is not required by the law. This is the work of the patent engineer (patent attorney).

If you file your patent application from Germany, you need to consult a German patent attorney starting with those IP Nexus who are very competent. I am of course available to provide you all information that the foregoing and assist you particularly in France.

Simon

6ae6ecfd59
弁理士

A US provisional patent is nothing more than a place-holder for a later 'real' patent application (which should follow within a year from filing of the provisional application. The provisional application then automatically ends at the end of this priority year.

In Europe the same thing can be done, except that in this case the priority forming application is just a real application that could develop into a patent. You may end it after one year, but you do not need to.

The advantage of the European system is that you can file this first priority application without paying any fees (and in any language). In the US filing of a provisional still would cost you a small amount.
Further, but then you have to pay the European filing fee and search fee, you may obtain a novelty search from the European Patent Office in the priority year. This is something that you will not be able to get with the US provisional application.

Both the US provisional patent application and the European priority application should be drafted with the utmost care. It is of no use to file incomplete or sloppy applications. The reason for this is that this first application acts as a priority application, meaning that a later application can claim the priority date of filing (for establishing novelty and non-obviousness) if - and only if - the claimed subject matter was already contained in the priority application. In Europe this criterium is taken very strictly and in general the claim on priority is only deemed valid if the priority application would contain the identical wording as the claimed matter in the 'real' application.

Ea1fa098fb
弁理士

A regular German patent application is a very powerful tool – offering similar advantages as a US provisional application and even more.
1. Cost: The official filing fee is 40 EUR for online filing (incl. 10 claims) or 60 EUR for paper filing (incl. 10 claims), the examination fee is 350 EUR (if no search request has been filed). A search request (300 EUR) may be filed independently from filing an examination request. For first filings (i.e. filings which do not claim a priority) the German Patent and Trademark Office in most cases issues a search or examination report within 9 months after the application date when the search fee or the examination fee is paid at the filing date. This also applies for applications filed in English without the necessity of filing a German translation before the issuance of the search or examination report. Accordingly, filing a German patent application with a search request will give you a valuable basis for deciding on further filings at comparably low official fees (340 EUR for online filing incl. 10 claims). For simply obtaining a priority date, the application may be filed in any language with the German Patent and Trademarks (or the European Patent Office) without paying any official fee.
2. Languages: German patent applications can also be filed in a language other than German. In that case, however, a German translation must be submitted within a period of three months after filing. If the application is written in English or French in full or in part, a German translation must be submitted within twelve months after the date of priority. If the translation is not filed in due time, the application will be deemed to be withdrawn.
3. Further peculiarities: At the date of filing the application, neither an examination request nor a search request are mandatory. Examination of the patent application may be postponed by filing a request for examination at a later stage. A request for examination has to be filed within 7 years after the date of application. Further, a utility model may be branched off within the first 10 years and while the parent patent application is pending. A utility model may be registered very quickly.

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