Can I apply for a patent before creating a prototype?

Generally inventors wonder whether they can apply for a patent before creating a prototype.

A simplistic answer to the question is, YES, one can apply for a patent before creating a prototype of the product.

Now let’s go to the reasoning behind the answer.

Every patent application has to be accompanied by a patent specification. The patent specification should explain your invention in sufficient detail so as to enable one having ordinary skill in the field of the invention, to practice your invention. Section 10(4) of the Indian patent act states what has to be included in the patent specification. A part of the aforementioned section is provided below: 

(4)Every complete specification shall—   

  • fully and particularly describe the invention and its operation or use and the method by which it is to be performed;
  • disclose the best method of performing the invention which is known to the applicant and for which he is entitled to claim protection; 

It shall be noted that, depending on the product and the field of technology, one may be able to “fully and particularly describe the invention and its operation or use and the method by which it is to be performed” without actually building a prototype. However, in some scenarios, one might have to build a prototype to be able to describe the invention in the required manner. In essence,   it is not mandatory, according to the Patent Act, to have a working prototype before applying for a patent.

In certain scenarios, the patent office might request for a model or sample, illustrating the invention. Even in such scenarios, the model or sample will only have to be provided before the patent is granted. The applicant will have sufficient time after applying for a patent to create such model or sample. Hence, the patent applicant need not worry about creating such model or sample before applying for a patent, if he can describe the invention adequately. The relevant section, which is Section 10(3) that corresponds to submission of model or sample, is reproduced below: 

10(3) If, in any particular case, the Controller considers that an application should be further supplemented by a model or sample of anything illustrating the invention or alleged to constitute an invention, such model or sample as he may require shall be furnished before the application is found in order for grant of a patent, but such model or sample shall not be deemed to form part of the specification.

It shall be noted that, making a prototype is not only a time consuming process, but also fairly expensive. If an inventor refrains from applying for a patent till the prototype is prepared, it may delay his patent filing process and in turn the priority date . In the mean time, if someone files for a patent for the same product, they will have earlier priority, and their invention will act as prior art for your invention, even though others might have invented the product after you did.

In such scenarios, he will be eligible for a patent grant, as in many countries of the world, including India, the patent systems follows a 'first to file' and not 'first to invent' concept. Hence, if the inventor feels that he has sufficient details about the invention to enable a person with ordinary skill in the field to practice the invention, even before building the prototype, he should ideally consider filing for a patent.
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