Inventors and even some patent professionals may be surprised to learn that several countries offer their own version of a provisional patent application. Confession follows: I’m an inventor and I was surprised when I learned other countries have provisionals. I’m also a lawyer, and I was still surprised. Provisional filing fees in the US are so low that I never had cause to look into it. Having looked into it, I now realize that — particularly for inventors on a shoestring budget — there are overseas alternatives that are cheaper than the US. As always, though, this is not legal advice, and check with your lawyer to make sure that filing in those countries does not create any undesired issues.
Provisional, non-final applications let you lock in a priority date for your invention. Since the first inventor to file gets the patent, filing quickly is critical. Provisional applications help you beat others to the patent office, before going to the full cost (financial and opportunity cost) and formality of a utility or PCT patent filing. In this post, we’ll tour the world’s provisional-style filings, detailing how they work in each jurisdiction and how they compare to the long-established U.S. provisional. Let’s explore the global landscape of low-cost, provisional patent applications that establish priority for later filings under the Paris Convention or PCT. Note that while US provisional patent applications are not published unless a utility application is filed claiming priority to the provisional, this is not true in all places.
Before we go any further, remember that the United States controls around a quarter of global gross domestic product. Given how inexpensive it is to file a provisional application in the U.S., it takes an exceptional case to not seek protection in the United States. Filing a U.S. provisional will avoid any risk that the U.S. will, as a matter of policy under the current administration, disallow use of extraterritorial provisional applications to establish a filing date for U.S. utility applications. To be clear, this is a low probability risk, and probably a lower risk than the U.S. questioning whether a foreign-filed provisional meets its requirements. Still, I don’t intend to to the chance, but as always (a) speak to your lawyer and (b) your mileage may vary.
Australia: The Down-Under Provisional
Australia offers a classic provisional patent application very much like the U.S. version. Anyone can file one – you don’t have to be an Aussie resident, though non-residents will need a local address for service (typically via an Australian patent attorney). The application must be in English, Australia’s official language, and the formal requirements are minimal. You need only a description of the invention (with drawings if helpful); no claims, abstract, or oath are required. In fact, IP Australia explicitly notes that provisionals “do not have all of the formal requirements of complete applications” – for example, no abstract or formal drawings needed, and you can even omit claims (but for many reasons it makes sense to include claims or claim-like portions). This relaxed approach can save significant preparation time and cost.
Speaking of cost, the Australian provisional is refreshingly affordable. The official filing fee is AU$110 for an online filing. Attorney fees for drafting a provisional in Australia can vary, but the patent office estimates a range of ~AU$4,000–$7,000 if you hire professional help – a fraction of the cost of a full patent application since there’s less formality and usually no claims to draft. Note that this pricing is similar to US pricing, but because it is Australian dollars, it is less expensive than filing in the US. As the exchange rate fluctuates, so will the cost of an Australian filing in non-Australian currency.
Once filed, an Australian provisional remains pending for the same 12 months that a U.S. provisional would remain pending. By the 12-month mark, you must convert the provisional to a standard patent application or file a PCT international application to keep the application alive. If you take no action, the provisional lapses at one year and simply expires quietly. This tracks U.S. rules.
During that year, you are technically “patent pending”. New matter can be added when you file the later non-provisional application, but (as with any provisional) any features not disclosed in your provisional do not share the provisional’s priority date. The provisional itself is never examined for patentability and never published as a stand-alone application. Importantly, filing a provisional does not start the 20-year patent term clock – the term in Australia is 20 years from the date of the subsequent standard patent filing, not the provisional’s date. This mirrors the US rule and means using a provisional effectively gives you up to 12 extra months of “patent pending” time without reducing the patent’s life.
Finally, an Australian provisional’s date can be claimed as a priority date under the Paris Convention and PCT, just as a US provisional’s date can. In short: Australia’s provisional system offers a near twin of the U.S. system, providing a cheap, flexible way to secure an early date while you decide if an idea is worth full patent protection. Note that filing a provisional and waiting the full year to file a utility application likely has the effect of making the patent issue a year later and expire a year later. If you are patenting something that has immediate value but is unlikely to have value in 20 years (for example, I was issued a variety of patents on ways to prevent illegal copying of DVDs — something that only had value for the couple of years before streaming video became king), you should file your utility application without delay.
New Zealand: A Kiwi Twist on Provisionals
New Zealand, like its (more geographically distant than most people think) neighbor, provides for provisional patent filings – with a few unique local quirks. As in Australia, any inventor/applicant can file, but you need an address for service in New Zealand or Australia on file (thanks to a trans-Tasman mutual recognition, Australian addresses are accepted) so foreigners typically work through a local patent attorney. You may file the application in English or Māori – New Zealand’s two official languages – but if you file in Māori, a verified English translation can be required by the patent office. (In practice, virtually all NZ patent specs are in English.)
Language of filings: Just a quick side trip here. If you’re doing any deal that involves your patents, whether getting VC funding, selling the patents, suing over the patents, licensing the patents, etc., there will often be a due diligence process where the counterparty will review your patents’ history. When the lawyers reviewing the file wrapper and history run into a language they don’t know, the they will need to have a translation done – and even then might be unsure how much trust to put into the translated version. Use caution when picking a language other than English if your monetization efforts will center around companies and countries where English is the dominant language. Consider also that the patent (and sometimes the patent application) are reviewed by executives who need to understand why they should take action.
New Zealand allows an applicant to file a provisional specification and then extend the pendency of the provisional from 12 months to 15 months. This sounds great — an extra 3 months is a miracle if you are trying to find funding for your company or want to better manage your cash flow. It comes with a cost, however. The Patent Cooperation Treaty (PCT) application (and most national phase applications) must be filed within 12 months of the filing date of the earliest application. If you take an extension beyond 12 months, be prepared to fight (and likely lose) to have your application in other countries count as having been filed on the provisional filing date.
New Zealand’s provisional specification requirements are forgiving. The provisional application is not examined by the IP office at all. It serves as a “broad disclosure” of the invention to hold the date. You need to provide a written description sufficient to support the claims you may draft later, but not necessarily the final detail or refined claim language (this is analogous to the “enablement” requirement in the United States). In other words, you should describe the concept in enough depth that later claims can find support, but the provisional can be somewhat “tentative” or high-level. No claims or abstract are required at the provisional stage. Like in the U.S., a provisional is given its own application number (separate from any complete application that follows) and simply establishes a priority date.
The cost to file a provisional in NZ is low: NZ$100 official fee. Like Australia, this is significantly cheaper than a full application. Attorney fees for a New Zealand provisional are also relatively low and many startups file the provisional themselves to save money (but not using a lawyer has its own risks).
A New Zealand provisional can serve as a priority document for Paris Convention filings or a PCT. You can file in NZ first, then within 12 months file elsewhere claiming priority of the NZ provisional. If you end up filing in NZ with a complete spec as well, note that – like many countries – the 20-year patent term in NZ is measured from the date of the complete application, not the provisional filing. So using a provisional does not eat away patent term in New Zealand (but like in the U.S., delaying filing your utility application delays issuance of the eventual patent).
India (and Commonwealth Asia): The British Legacy Provisional
India inherited its provisional patent application system from the old British patent laws – and it remains a popular route for local inventors and companies to quickly secure a filing date. In India, one may file either a provisional or a complete specification as the first filing. Who can file? Any inventor or applicant, Indian or foreign, can file a patent application in India (foreign applicants usually must do so through an Indian patent agent, and India – like many countries – requires that Indian resident inventors get a foreign filing license or file in India first before filing abroad).
Indian patent applications can be filed in English or Hindi, the two official languages of the Indian Patent Office. In practice, virtually all are in English – it’s the lingua franca of science and technology in India. If an application were filed in Hindi, the Patent Office could request an English translation.
The formal requirements for an Indian provisional are quite minimal. The filing simply needs a specification describing the invention (with drawings if necessary for understanding) and the identity details of the inventors and applicant. No claims are required in a provisional filing. The logic is to allow applicants to stake a claim to a priority date early, and then refine the claims during the 12-month period. An Indian provisional will never be examined on its merits. Within 12 months you must file a complete specification to avoid abandonment. The 12-month deadline is strict – India does not allow extensions for the provisional-to-complete period (and failing to file the complete spec in time means the provisional is considered abandoned, with no patent rights or priority benefit). When you do file the complete application, it must be enabled by the material from the provisional in order to claim priority (for that material) to the provisional. New matter can be added in the complete specification, but any new matter will not enjoy the provisional priority date (just like in the US). Practically, most Indian applicants try to include a robust description in the provisional itself, because later claims are only entitled to priority for what was originally disclosed. This is good advice under the US system as well — make the provisional as complete as possible.
The cost of an Indian provisional is very low – one reason it’s heavily used by startups and individual inventors in India. For an individual inventor, note that there is also a discount on PCT filing fees for applicants from developing countries (see FAQ 81). The official filing fee is substantially less than in many other countries. India differentiates fees by applicant size, with discounts for individuals and small businesses, again not unlike the US, although the US has three tiers of fees applicable to different entities than the Indian system. Attorney fees for drafting a provisional in India can range widely, but are often in the few tens of thousands of rupees (hundreds of dollars) – significantly less than a full patent draft – because a provisional has fewer formal requirements and serves mostly to enable the invention and secure the date, and perfected later. Note, of course, that if you are relying on the provisional to preserve your priority date for filing in other countries (whether directly or via PCT), the quality of the provisional must meet not only Indian standards, but the standards of every country you intend to seek a patent in.
One important caveat: filing a provisional does count as the patent’s filing date for term purposes in India. Indian patents have a 20-year term from the date of filing of the application (whether provisional or complete). If you file a provisional in March 2025 and the utility application in March 2026, and the patent grants, it will expire in 2045 counted from 2025 (not 2026). In other words, the clock starts ticking with the provisional date for Indian patents. This is different from the U.S. and some other systems. While an Indian provisional secures your early date, it uses up part of the patent term.
There is an important apparent glitch in India’s term calculation system: The filing date for calculating the expiration of a granted patent in India is 20 years from the international filing date for PCT applications entering the India national phase. While the law appears a bit uncertain (perhaps because I’m a US lawyer, not a lawyer in India), a layperson’s read of the law seems to reward filing for a provisional outside of India. That is, if I file a provisional in the United States on January 1, 2030 and file a PCT application claiming priority to that provisional on January 1, 2031, the resulting patent in India normally expires 20 years from the PCT date, or January 1, 2051. However, if I file the provisional in India, it would shave a year off of the India expiration, leading to a January 1, 2050 expiration date. Strangely, a patent in another country claiming priority to the Indian provisional might last an extra year (depending, for each country, on how their patent law relating to expiration is phrased). Put another way: Get a lawyer to look at your specific circumstances.
An Indian provisional is kept confidential and is never published unless and until a complete specification is filed and that complete application is published. Note, again, that this is not legal advice, and if you are relying on the Indian patent office to preserve your trade secret during pendency of the provisional (and if you file no utility application, thereafter) you should get an opinion letter to that effect from an attorney licensed in India.
An Indian provisional can be used to establish a priority date for foreign filings. Under the Paris Convention, you can claim priority from an Indian provisional when filing in other countries or in a PCT application. Many Indian applicants use this route: file a quick provisional in India (cheap and in English), then within 12 months file a PCT or U.S. application claiming that priority. As a Paris Convention member, India’s provisional dates are accepted in most major jurisdictions. (Do note: if you’re an inventor in India, Indian law requires either filing in India first or obtaining a foreign filing license; so using the Indian provisional as the first filing can satisfy that requirement and still allow you to go global within a year).
India’s provisional application offers a low-cost early filing with minimal formality. Just remember that unlike the US, that early filing starts the patent term clock ticking in India, so you don’t get a “21st year” via a provisional. Despite that, it remains a strategic tool to secure an early date and buy time to assess an invention’s commercial viability before incurring the full expense of examination and grant.
South Africa: Provisionals for Edisons on a Budget
South Africa offers an inexpensive provisional filing. South Africa, like India, inherited the provisional/complete system from British law and continues to allow provisional patent applications. Anyone can file a provisional in South Africa (foreigners typically must file through a South African patent attorney, but there are even online services that facilitate SA provisional filings for overseas applicants at very low cost). The application language is English.
A South African provisional requires only a specification disclosing the invention – no claims are required at this stage, and as you would expect, no examination of the provisional. It really serves as a date-stamped disclosure of your invention. The official fee for a provisional is R 60 (60 South African Rand) – on the order of a few US dollars. This token fee makes South Africa’s system extremely attractive for cost-conscious inventors. In fact, some global inventors file a South African provisional via online platforms for a few dozen dollars (including service fees) just to get Patent Pending status.
When converting the provisional to a complete application in South Africa, you’ll need to furnish the full set of claims, abstract, and any additional material. You can add new matter in the complete specification, but any new matter won’t enjoy the provisional’s priority date (and could even jeopardize part of your SA patent, since South Africa, though a “registration” system without substantive examination, still formally doesn’t allow adding matter beyond what was originally disclosed). The safer approach is to include as much as possible in the provisional. Notably, South Africa does not examine patents for novelty or inventiveness even at the complete stage – it’s a filing and formalities check system (the onus is on the applicant to ensure the invention is new). So the provisional is really just an informal first step in a relatively low-fuss patent system.
(Aside: Other African and Commonwealth jurisdictions often have similar provisional provisions. For example, Kenya, Nigeria, Pakistan, Malaysia, and others allow filing a provisional specification with 12 months to file a complete. The patterns are akin to the India/SA model. Always check local counsel, but broadly the Commonwealth countries that based their laws on the old UK act have this two-stage filing system in place.)
Portugal
Outside the English-speaking world, Portugal is notable for explicitly offering a “Provisional Patent Application” (PPA) under its national law. The Portuguese system provides two flavors of patent filings: a provisional application (Pedido Provisório de Patente) and a definitive (non-provisional) application, sometimes just called the standard patent application.
In Portugal, any person or company can file a provisional application. There are no residency restrictions – foreign applicants are welcome (though they’ll need a local Portuguese patent agent to handle the filing/formalities). Portugal is part of the EU, so European inventors often consider it, but even non-Europeans can use it as a first filing for priority purposes.
A convenient feature is that the Portuguese provisional may be filed in Portuguese or English.
France: Le “Dépot Provisoire” – Vive la Provisional!
In 2020, France joined the provisional club, adding a new mechanism called the “demande provisoire de brevet” (DPB) – i.e. a provisional patent application. This is a significant development, as historically most of Europe did not offer provisional filings. France’s system is designed to be a simplified, low-cost first filing that does not immediately result in an examinable patent application, but secures a filing date and gives the applicant up to 12 months to decide on next steps.
Who can file a French provisional? Anyone – any individual or company, French or foreign – can file a DPB. It must be done electronically via the INPI (France’s patent office) online system. Foreign applicants not residing in France will eventually need to appoint a French patent attorney (mandataire) when proceeding to a full application, but for the provisional itself, the process is straightforward online. Language: The application must be filed in French (since the INPI operates in French). Unlike Portugal, France did not make English an option for the provisional – so a translation to French is needed if your documents are in another language. That said, the INPI has templates and guidance in French to help applicants through the process. Note that filing a provisional in France does not grant the same “extra year” as the U.S. does.
How Do Foreign Provisionals Differ from the U.S. System?
Having looked at a variety of provisional application systems, let’s recap how these foreign provisional applications stack up against the familiar U.S. provisional patent application. The U.S. provisional is a informal application that holds your priority date for 12 months, is never examined, never published (unless used in a later patent), and does not count toward your patent term. How do the others compare?
- Publication: A common theme is that provisionals are not published in any country unless they are followed by a regular application (again, the law changes and there a subtleties, so you need to confirm with your own lawyer in light of your own situation). One nuance is that some offices (like Australia) will publish the title and applicant name shortly after filing for public notice, but no technical information is revealed. But there is nothing that says any particular patent office computer system is hack-proof. It would be unsurprising if non-public patent applications, including provisionals that have expired, are exfiltrated from a patent office computer system at some point.
- Examination: No country examines a provisional application for patentability – that’s kind of the point.
- 20-Year Patent Term Clock: Here lies a key difference. In the U.S., filing a provisional does NOT start the 20-year term clock – the 20 years is measured from the later non-provisional filing date. However, in some other jurisdictions, the patent term is measured from the earliest effective filing date of the patent application, which will be the provisional’s date if that provisional turns into the actual patent application. For example, in India and France, if you file a provisional in year 0 and complete in year 1, and that leads to a patent, the expiry is 20 years from year 0.
- Residency and Filing Formalities: Unlike the U.S., where anyone worldwide can file a provisional with the USPTO (no citizenship requirements), foreign countries often require local representation to file.
- Pros and Cons for U.S. Applicants Using Foreign Options: Why would a U.S. applicant ever file a foreign provisional, given the convenience of the US provisional? There are a few niche strategic reasons:
- Pros:
- Cost SavingLanguage Flexibility
- Cons:
- Complexity and Legal Risk: Filing in another country means dealing with another country’s laws and possibly language. A mistake (like missing the 12-month conversion deadline in that country) could forfeit your priority right.
- Foreign Filing License and Secrecy: A U.S. inventor technically needs a foreign filing license to file abroad first. The USPTO can grant this, but it’s an extra step. If one files abroad without it, they could jeopardize any subsequent U.S. patent.
- No Real Gain Over US Provisional: The U.S. provisional is already pretty cheap (for small entities it’s $150 or less, micro-entity $60) and very flexible. It also buys you the max patent term benefit. In most cases, a U.S. provisional will suffice to secure an early date, and then you can file PCT or foreign applications claiming it.
- Term issues abroad: If a U.S. applicant uses a foreign provisional and later actually pursues a patent in that foreign country, they could unknowingly cut their patent term short in that country.
- Multiple Provisionals and Priorities: Some inventors consider filing multiple staggered provisional applications as they improve the invention. The U.S. system allows filing as many provisionals as you want and then combining/claiming priority to all of them in one non-provisional (within 12 months). Other countries might not have an explicit mechanism for multiple provisional consolidation (though via PCT you can claim multiple priorities).
In summary, for a U.S. applicant, foreign provisional options usually don’t outshine the simplicity of filing a U.S. provisional.
On a personal level, for my own inventions I see no reason to file a provisional application outside of the United States.
The U.S. provisional gives you the early date, recognized globally, and doesn’t start the term clock or require translation.