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Can You Patent an Idea Without a Prototype?

There are lots of ways to approach developing a new invention. One of the most common methods, especially in relation to mechanical inventions, is to create a prototype.

Prototyping an invention is a great way to refine the concept and work through any roadblocks. Prototyping can be an extended process, and the resulting end product may be quite different from the first iteration, which presents a challenge in protecting your ideas.

Since it’s important to protect new inventions as soon as possible, clients often ask if you can patent an idea without a prototype.


In this article, we will discuss the need for prototypes when obtaining patents, and some of the other ways you can protect inventions during the development process.

Can You Patent an Idea Without a Prototype?

There is no legal requirement to produce a prototype of your invention before applying for a patent. However, Australian patents are only granted for inventions that are:

  • New – The invention must be novel.

  • Inventive – The invention must be sufficiently different to existing products and patents.

  • Useful – The invention can be made, or used in an industry.

In many cases, the best way to ensure an invention meets these criteria is to develop working prototypes, but this is by no means a necessity.


Developing a finalised prototype can be a lengthy process, especially if you seek to engage third parties such as engineers or industrial designers.

Protecting Inventions With Provisional Patents

Provisional patent applications are a great tool for ensuring your rights are secured at the earliest possible date, while continuing to develop and prototype an invention.

Provisional applications are not published, however, subsequent complete applications or PCT (international-type) applications are published. 

A provisional patent application is an affordable way to establish a “priority date.” With a provisional patent application, you can secure your invention broadly, as well as any possible iterations and developments disclosed within the application for a period of 12-months. It is important to describe any alternate iterations in as much detail as possible in your provisional patent application. 

If the invention develops beyond the aspects described in your original application, it is possible to file updated provisional applications outlining the new aspects. Importantly, the new material will have a later priority date, and any claims based upon the new material will have the same later priority date. 

As an illustrative example of the benefits of a provisional patent: 

Company A is developing an invention and wants to create a prototype of the product. They lodge a provisional patent application in February of 2023 before prototyping begins, describing  the broad aspects of their product. 

After several prototypes, Company A arrives at a specific product that best serves their purpose. Company A calls their patent attorney and informs them of the specific product in November 2023.

The patent attorney informs Company A that the specific product is described in the provisional patent application, but also advises the company to file an updated provisional patent that describes the specific product in detail.  

Company A files an updated provisional patent in November 2023. They  subsequently file a complete patent application before the end of their 12-month provisional patent application period. 


Company B, develops a prototype for a similar invention and files a standard patent application in October of 2023.

When Company B’s patent application is examined, Company A’s invention will be cited as “novelty destroying.” This is because Company A’s patent application has an earlier priority date of February 2023.

This applies even though Company B had a refined prototype earlier than Company A, and even though Company A’s patent was not yet published at the time Company B’s patent was filed. 

As can be seen, provisional patents can be a useful tool for inventors, and especially those seeking to undertake further research and development of their invention. 

Provisional patent applications are also notably cheaper than standard patent applications. They may also enable the applicant to adjust their international filing strategy for a longer period of time than standard patent applications.  

Because of the reduced costs and the additional time to develop an international filing strategy, provisional patent applications are also a great tool for inventors seeking investors. Investors can help with costs of further research and international filing.


Provisional patent applicants can also rest assured that their rights are secured and they can disclose the invention to potential investors with little risk. 

How to Protect an Idea Without a Patent

Sometimes, the 12-month term of a provisional patent application is not enough time for applicants to refine their invention.

In such instances, we may refile the provisional patent application. Importantly, refiling the provisional application will mean that the priority date becomes the later, refiled date. 

Because of this later priority date, if you are aware of competitors developing similar inventions, or if technology in your industry is rapidly advancing, we would not recommend this course of action.

Additional Protection for Your Intellectual Property

While a patent is the ideal tool for protecting your invention, you may not yet be ready to file a provisional patent application, or you may be seeking additional protection. In those cases, you can protect your ideas and brand in the following ways:

  1. Trade secrets – A trade secret is a type of confidential information that provides you with a competitive advantage. An idea or invention can be protected as a trade secret using confidentiality agreements between you and your employees, suppliers and manufacturers. 

    For example, the formula for Coca Cola is trade secret. If Coca Cola attempted to patent its recipe, they would be required to make the formula publicly available, and it would enter the public domain once the patent lapsed.

    By keeping the formula a trade secret, Coca Cola is able to maintain their competitive advantage.

    Trade secrets are protected by common law. You may be able to take legal action against anyone who violates a contract or formal agreement which protects your trade secrets.

  2. Non-disclosure agreements – Non-disclosure agreements (NDAs) – sometimes called a confidentiality agreement – is a contract used to protect sensitive information.

    The employees of businesses often sign NDAs that prevent them from sharing commercial information. 
    If you are developing an invention, have your employees, suppliers, manufacturers and other parties sign an NDA that prevents them from sharing your work without permission.

  3. Manufacturing agreements – A manufacturing agreement is a contract between you and any third parties that are involved in producing your invention. As long as you do not make your invention publicly known in the process, you can use a manufacturing agreement to prevent a manufacturer from:
    1. Copying your invention
    2. Copying your product
    3. Competing against you in the marketplace
    4. Contacting your clients (or potential clients)
    5. Sharing your trade secrets

  4. Copyright – Parts of your invention may receive automatic copyright protection in Australia. Copyright protects the original expression of an idea or information. It does not protect the idea itself, so you should not rely on copyright to protect a patentable invention. 

    For example, if you draw a detailed schematic of an invention, the drawing will receive automatic copyright protection. Copyright does not prevent someone else from using the schematic to produce a working prototype or commercialising their prototype.

  5. Design rights – You can use design rights to protect the visual appearance of a new product. While a design right does not protect the functionality of an invention, it can protect unique visual features that will make your product distinctive in the marketplace. 

    Design rights can also be useful where the product must have a certain distinct visual appearance in order to function. In such instances, protecting the visual appearance may also indirectly protect the function associated with its visual appearance. For example, a design right can protect the form and function of a fan with improved air movement capabilities resulting from a uniquely shaped blade. 

  6. Trade marks – You can register unique branding and product names as trade marks. This will not provide any protection for your inventions, but it may increase the commercial value of your business and improve brand recognition.

A good example of this is Viagra. Viagra is a trade mark for the product sildenafil. The sildenafil product was protected by patents, with the Australian patent expiring in 2012. However, because of the established branding of Viagra, the applicants still enjoy a significant market share (despite generic products entering the market). 

Protect Your Intellectual Property With the Patent Attorneys at Kings!

Your intellectual property is one of your most valuable assets. While Australia provides robust IP law that you can use to enforce your rights, it’s important to have the right protections in place.

If you are a private individual or business seeking a patent, the attorneys at Kings can ensure your ideas are secure and tailor an intellectual property strategy to your goals and budget.

Kings is an independent firm offering intellectual property services throughout Australia and New Zealand. Our attorneys are experienced in drafting patent specifications, filing applications, prosecuting applications, and enforcing your rights.

We can manage your patents from start to finish, helping you maintain a competitive edge with tailored advice, representation and professional services.

Contact us today to book a complimentary, confidential consultation with the attorneys at Kings!

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