Say I filed a provisional patent application at the USPTO on June 1st, 2020. The following year I filed a non-provisional on May 30th, 2021. I think file a complete patent application at the Indian Patent Office on Sept. 15th 2021. Will the Indian Patent Office consider my June 1,2020 provisional patent application at USPTO as a disclosure?
1I’m not an expert so I won’t answer. However I don’t think provisional applications actually publish so I doubt it would count as a disclosure.– Eric S ♦Oct 19, 2022 at 18:44
No — since it was not published. But you can’t use it to get a priority date for the patent in India (more than a year delay) unless there is a provision in Indian law to restore priority or it was withdrawn in the US before the US non provisional was filed.
Since you can’t rely on any earlier priority date under the Paris Convention, disclosure before the filing in India would break novelty and disqualify the application unless the disclosure falls under a grace period law in India. See https://ipindia.gov.in/writereaddata/Portal/Images/pdf/Final_FREQUENTLY_ASKED_QUESTIONS_-PATENT.pdf. Page 4
This is from 2020. I do not know if it still the law there.
Thank you @GeorgeWhite. While not a part of the original question I am curious about "you can’t use it to get a priority date for the patent in India (more than a year delay)". Is it even possible to get an earlier priority date for an Indian complete patent using the provisional filed at USPTO if the Indian complete patent is filed within 12 months of the US provisional patent application? Maybe I should ask this as a separate question for the benefit of the community in general.– vikx01Oct 20, 2022 at 16:35