Comparing U.S. and Australian Provisional Patent Applications

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General Similarities

  • Both United States and Australia allow filing of a provisional patent application.
  • Secures a priority date for:
    • National non-provisional application
    • PCT application
  • Non-provisional must be filed within 12 months.
  • Provisional applications:
    • Do not require formal claims
    • Do not need to meet strict organization/formality requirements.

Prior Art Search

🇺🇸 United States

  • No search available for:
    • Claims
    • Subject matter
  • No early insight into patentability during provisional stage.

🇦🇺 Australia

  • Option to request an International Type Search (ITS).
  • Search can cover:
    • Claims, or
    • Identified subject matter.
  • Provides:
    • List of relevant prior art
    • No written opinion.
  • Timeline:
    • About 6 weeks from request.
  • Cost:
    • AU$2200 search fee.
    • Partial refund if later filing PCT claiming priority.
  • Advantage:
    • Early evaluation of patentability before investing in non-provisional filing.

Secrecy

🇺🇸 United States

  • Provisional remains fully secret
  • Becomes public only if priority is later claimed.

🇦🇺 Australia

  • At filing:
    • Title of invention and
    • Applicant name are published.
  • Rest of application remains secret unless priority claimed.
  • ITS search results remain secret unless priority claimed.

Official Filing Fees

🇺🇸 United States

  • Filing fee due at filing:
    • US$260 (large entity)
    • US$130 (small entity)
    • US$65 (micro entity)
  • Relatively low cost.

🇦🇺 Australia

  • Filing fee:
    • AU$110
      • AU$100 if not filed electronically.
  • Fee can be paid:
    • Within 2 months after notice.
  • If unpaid:
    • Application becomes abandoned.
  • Advantage:
    • Potentially very low upfront cost.

Key Practical Differences

  • Search availability: Australia offers optional early search; U.S. does not.
  • Confidentiality: U.S. fully secret; Australia publishes title & applicant name.
  • Fees: Australia allows delayed payment; U.S. requires payment at filing.
  • Strategic benefit: Australia’s ITS offers early patentability assessment.

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