If I provisionally patent an invention in 1 country(USA) and then develop and take to market in that country and others, before patenting within 1 year, can someone copy the invention and take it to market in another country without worrying about any consequences of infringement?

  • A little unclear. Are you planning to file patents in other countries?
    – Eric S
    Oct 31, 2017 at 17:19
  • Also, "provisionally patent" is not a thing. If you don't have a utility patent granted, you have no enforceable rights to prevent infringement anywhere. "Patenting", i.e., the issuance of a patent, typically takes a whole lot longer than "within 1 year" after filing the non-provisional application. Are you asking whether you can enforce a patent that has not yet been filed?
    – Upnorth
    Nov 28, 2017 at 1:59

1 Answer 1

  1. The provisional patent shouldn't become a part of the public domain unless you publish it (at least for the USPTO, provisional applications are not published, and non-provisional applications are not published until ~18 months after the initial submission, which includes the provisional.)

  2. Provisional applications and pre-grant nonprovisionals only confer the "Patent Pending" status. Violating a patent pending is not technically infringement b/c the patent may not receive a grant. However, if the application does receive a grant, and the "patent pending" was listed along with the description or product of the invention, it does become infringement and damages may be sought retroactively under certain circumstances.

Note: You will have to file a non-provisional application in each region or country you plan to seek protection. You won't have protection in regions where you don't file an application.

  • The OP seems more concerned about others copying the invention, not the disclosure of the provisional application. Once a product hits the market, or an application is published, or the invention is otherwise disclosed, anyone in the entire world is free to copy and sell it until the day the invention is patented in their country.
    – Upnorth
    Nov 28, 2017 at 2:01

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