So apparently it can take years for a patent to be approved. Assume I make an invention and file a provisional application for patent right after the invention is public.

Is it okay and possible for other people / companies to take the idea before I follow up and file my non-provisional application for patent and before the patent gets approved?

If my non-provisional application for patent is not approved yet, can I still legally sue or stop other companies which take my idea because my patent is pending?

3 Answers 3


Only an issued patent can be used to stop someone from selling, making, importing or using an invention.


Further to George's answer, you don't have firm ground to stand on until the patent has been issued.

Until then, you can try to scare the other party away from infringing the not-yet-in-existence-patent: get a lawyer's help to write a cease-and-desist letter, advising the other party that you have applied for this patent, and advising that when it is granted you will vigorously defend your patent and seek damages retroactive to the date of your patent application date, unless they C&D immediately.


Provisional patent means you have superior right in the patent application which means no one else can get a patent on the same idea unless yours is rejected. But this doesn't prevent others from using, selling or distributing your idea until the patent is granted.

  • There is no such thing as a provisional patent. It is only a kind of an application for a patent. If you let your provisional application expire at the end of 12 months and do not publish the information, someone who independently invents it can certainly can get a patent. Regarding "unless yours is rejected" - incorrect. If your application is rejected then someone else's application for the same invention would also be rejected on the same grounds. And the rejection of your patent does not change its value as prior art against a later filer.
    – George White
    Oct 28, 2014 at 7:10

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