If I File a Provisional, Will It Hurt My Competitor?

Yes, because it will ensure that any patent rights to the subject matter of your application are reserved for you, the first-filer. This provides you a chance to trump someone who is attempting to claim those patent rights. In this way, we address the problem before the competitor is issued a patent. The fees to challenge a patent are not applicable until there is an actual patent to challenge. If we notice a competitor filing, we quickly covert our provisional to a non-provisional. The non-provisional will then have a priority date of the provisional (which is before the competitor’s filing). The Examiner may then use our non-provisional application in rejecting the competitors filing. If we were to approach this without having a provisional on file, we could pay $30k+ in fees to invalidate against a patent or wait for litigation and defend on the grounds of our prior usage rights (patent litigation). Either way, without at least a provisional on file, we would risk to lose our own patent right’s due the patent office’s “First-to-File” standard.. and, in addition, deal with the potential of extensive costs down the road.

If you are interested in more detail related to your situation it is best to speak with an attorney.