Do I get a Patent Pending Number, file a Provisional Patent or apply for a Complete Patent?

Let me guess: you’ve just come up with a new invention; someone’s told you to patent it; you’ve had a look at the internet, and the options are confusing.

Do you:

• Get a Patent Pending Number for $99?
• File a Provisional Patent application?
• Apply for a South African Complete Patent?
• Jump right in and file an International / PCT Patent application?

Patent attorneys are advising you to file a Provisional Patent application. But, you’re not convinced. Let’s explain the difference:

Patent Pending Number

If you intend to use your patent primarily for marketing and deterrence, and don’t have the money to cover the entire patent process, get a Patent Pending Number.

A Patent Pending Number: takes a few minutes to file; costs only US$199 through GlobalIPCo or $99 through Iptica; and merely requires you to upload a document that fully describes your invention – no specific format prescribed. For tips on writing a document that “fully describes” your invention, see our Patent Template and our DIY Patent Guide. You’ll receive an official Patent Pending Number within two business days of filing, guaranteed.

What does a Patent Pending Number give you?

Basically everything:

• a Patent Pending Number allows you to: claim that your product is “Patent Pending”, and mark your product (including its packaging and marketing material) “Patent Pending”;
• your Patent Pending Number application will be maintained secret by the Patent Office;
• your competitors will question what you’ve patented;
• marking your product “Patent Pending” will reinforce marketing claims that the product is “new” and “inventive”;
• and, yes, if in 12 months’ time you wish to spend a lot more money and get complete patents in South Africa and other countries, you may engage a patent attorney to file corresponding complete patents (that claim the date of your Patent Pending Number) worldwide.

Provisional Patent application

If you primarily intend to take copycats to Court (which takes 45-63 months and costs in excess of R1 million), then you should engage a patent attorney to file a South African provisional patent. Doing this will yield exactly the same rights as the Patent Pending Number detailed above – the Patent Pending Number is the low-cost, self-filing option of filing a Provisional Patent application.

Tip: Don’t waste money getting a patent attorney to draft your Provisional Patent application without first conducting an international online patent search.

A Provisional Patent application does not, in itself, “protect” your invention. It merely reserves your rights to extend your patent worldwide for 12 months (just like a Patent Pending Number). To take copycats to Court, you’ll still need to draft, file and prosecute to grant a Complete Patent in each country where you wish to sue copycats. Your expected downstream costs are:

So, why file a Provisional Patent application instead of kickstarting the process with a Complete (or PCT) Patent?

Unlike a Provisional Patent application, the Complete Patent “crystallises” your invention. Basically, if you expect within the next 12 months further to develop the invention, and add more features, definitely start with a Provisional Patent. This will enable you to add those new developments to the downstream Complete Patent. Whereas, if you start by filing a Complete Patent, and during the next 12 months wish to cover further modifications, you’ll need to file another Complete Patent, effectively doubling your downstream patent costs. That’s why 99% of inventors start by filing a Provisional Patent and not a Complete Patent.

When can I expect to sue a copycat?

Typically, inventors follow a Provisional Patent application up with a PCT patent, followed by a South African Complete Patent. If you follow this route, the earliest that you can expect to face a copycat in Court is in 63 months’ time (i.e. 12 months to file a PCT Patent, +18 months to file a South African Complete Patent, +12 months to prosecute the South African Complete Patent to grant, +9 months moratorium on threatening infringement, +12 months to secure a Court date).

Complete Patent application

If: you’re certain that you’ll not make any further changes to your invention within the next 12 months; and you’re itching to take copycats to Court, start by filing a Complete Patent. Complete Patents must be drafted and filed by a Patent Attorney, and you can expect the Patent Attorney’s cost to draft a Complete Patent in the first instance to be higher than the cost to convert a Provisional Patent to a Complete Patent.

Although this is your fastest route to “protection”, it’ll still take at least 21 months for you to be able to “threaten” a copycat with legal action; and to take him to court will take another at least 12 months.

International / PCT Patent application

Instead of filing a South African Complete Patent application, you can start by filing an international / PCT Patent application. This is the most expensive option.

A PCT Patent application reserves your right to extend your patent rights to most countries in the world for 30 months (as compared to 12 months for a Patent Pending Number / Provisional Patent application). However, a PCT Patent does not entitle you to sue copycats. By the 30 month deadline, you’ll still need to file Complete Patents in South Africa (and in other countries where you wish to secure patent protection), and prosecute these Complete Patent applications to grant (which typically takes 12-36 months) before you’re able to take copycats to Court. If you start with filing a PCT Patent application, the earliest you can expect to face a South African copycat in Court is 63 months after filing.

So, what should I do?

We suggest that you decide between two options:

• Will you primarily use your patent for Marketing and Deterrence? If so, get a Patent Pending Number for $199 / $99; or
• Is your intention to take copycats to Court in 45-63 months? If so, file a Provisional Patent.