Provisional patent: the Eldorado of entrepreneurs?

🚩 Read: Filing a provisional patent application: advantages and risks of a new procedure

What is a provisional patent?

In principle, the granting of a patent enables industrial property to be protected for a period of 20 years. The process of applying for a patent takes time and money, for a title that must be maintained for two decades in exchange for the payment of annuities.

Small companies and independent inventors are often reluctant to go through all these formalities. The initial cost, the risk of not obtaining a patent, the non-guarantee of having an invention with growth potential… these are all risks that small budgets don’t appreciate!

20/01/2020
The terms and conditions of the provisional patent application were set out in Decree 2020-15 of January 8, 2020. The decree is issued for the application of article 118 of law no. 2019-486 of May 22, 2019 (PACTE law). The text sets out the conditions for bringing the provisional patent application into conformity, or transforming it into a utility certificate application.

The provisional patent is an indispensable step for virtually all American start-ups. In the United States, the existence of a provisional patent enables entrepreneurs to protect an innovation as early as possible, so that it can be marketed and communicated fully.

Note that in France, the mere mention of your invention at a trade fair, conference or public publication makes it irremediably unpatentable.

For those interested in this fascinating subject, an article in Forbes US explains the advantages of Provisional Patent.

Is short-term protection already available in France?

Although the French provisional patent is not yet a reality, existing formalities already enable you to protect an invention in the short term.

The utility certificate is popular for its streamlined procedure and 6-year protection, compared with 20 years for a patent. When the innovation concerns a field where obsolescence occurs rapidly, the utility certificate is sometimes a more profitable investment. Industrial property protection is just as strong, and there are fewer annuities to pay!

20/01/2020
The new provisions of the PACTE law extend the validity of utility certificates from 6 to 10 years. A utility certificate application made on or after January 11, 2020 can also be converted into a patent application.

We would like to draw your attention to the Soleau envelope. Although the electronic Soleau envelope enables you to time-stamp documents and their contents, it is not a title to industrial property!

Well-known in the field of copyright, electronic Soleau remains an interesting procedure when you’re in the process of prototyping.

• Read: How long does a patent last?

What the arrival of a provisional patent would mean in France

By filing a provisional patent application, you could obtain priority for the invention in question. Based on what is currently the case in the USA, it will still be necessary to be demanding when drafting the patent, to ensure that the description of the innovation is sufficiently protective. The arrival of the provisional patent application in France will not, therefore, negate the need to call on the services of a professional such as an industrial property attorney.

• Read more: Who can apply for a patent?

Thanks to the provisional patent, which would be much more straightforward and less expensive than its counterpart, a small company could register its invention with the INPI as soon as possible, without immediately incurring significant costs in terms of fees and taxes for drafting. This would make the patent itself more attractive, even for VSEs and SMEs. This provisional patent application is one of the proposals made in the PACTE (plan d’action pour la croissance et la transformation des entreprises) bill.

Following discussions in the French National Assembly, the PACTE law was passed on April 11, 2019, and includes the introduction of a provisional patent application. INPI is therefore expected to implement this procedure in the coming months.