Provisional protection refers to the legal effect attached to the publication of a patent application, even before the patent is granted. It allows the applicant to benefit from an initial form of protection against unauthorised use of their invention, subject to the successful granting of a patent.
In France and Europe, the publication of a patent application (18 months after filing or the priority date, unless an early publication request is made) confers provisional protection on its owner. On this basis, the owner may act against a competing infringer to obtain damages for acts of infringement that occurred between publication and grant.
Provisional protection becomes effective retroactively upon the grant of the patent. Thus, in the event of an infringement action based on a patent application under examination, the judge is required to stay proceedings until the patent is granted.
Concerning European patents, depending on the country where protection is sought, it is possible to request the Office to publish a translation of the set of claims in the language of that country.
Finally, suppose a potential infringer is identified before publication. In that case, it is always possible to inform them by notifying them of a copy of the patent application or, if necessary, requesting early publication of the application.