Provisional rights, in the context of intellectual property law, particularly patents, refer to the limited rights granted to a patent applicant after their patent application has been published but before the patent has been officially granted. These provisional rights are not as robust as the rights conferred upon the patent holder but serve as a form of protection during the application process. Here's a more detailed explanation of provisional rights:
1. Publication of Patent Application: When an inventor or applicant files for a patent with the relevant patent office, the application undergoes a review process. At a certain point in this process, typically 18 months after filing (or sooner in some jurisdictions), the patent application is published. This publication makes the details of the invention available to the public.
2. Provisional Rights Period: After the patent application is published, the applicant is granted provisional rights. These rights are not the same as the full rights granted to a patent holder, but they offer some protection during the period between publication and the actual granting of the patent.
3. Scope of Provisional Rights: The provisional rights allow the applicant to potentially seek damages from parties that infringe upon the patented invention during the provisional rights period. However, these damages are typically limited and cannot accrue before the patent is officially granted.
4. Conditions and Limitations: To enforce provisional rights, the applicant must meet certain conditions. For example, they must notify the alleged infringing party of the published application and the provisional rights. Additionally, if the patent is eventually denied or significantly modified during the application process, the provisional rights may not apply.
5. Full Patent Rights: Provisional rights serve as a temporary form of protection but are not as comprehensive as the rights granted to a patent holder upon the granting of the patent. Once the patent is officially granted, the patent holder gains the exclusive right to make, use, and sell the patented invention, with the ability to seek damages for past infringement dating back to the publication of the application.
In summary, provisional rights provide a measure of protection to patent applicants during the period between the publication of their patent application and the actual granting of the patent. While they offer limited rights to seek damages for infringement, these rights are not as extensive as the rights enjoyed by full-fledged patent holders. Provisional rights serve as a bridge between the publication of the invention and the ultimate protection provided by a granted patent.
