The simple answer is, no – it is not possible to patent an idea. Patents protect inventions – that is, an idea has been a defined by an operative prototype that is functional and has a purpose. Before you even consider patenting you will need to be able to explain how your idea works and have a comprehensive description. A patent application does not need to be a blueprint for your invention but it must allow others to understand your invention’s functionality.

To lodge a provisional or innovation patent application, you do not need to have a prototype but you will need a detailed description and illustration of your invention. Here, you may prefer to lodge a provisional application to continue developing your idea under the protection of a provisional patent for 12 months. A provisional patent does not offer patent protection but a priority date for your invention.

An innovation patent requires an innovative step and offers eight years of protection. It’s best suited for an invention that requires a short market span. Examination of the patent will not occur until requested or deemed by the Commissioner of Patents.

How Can I Protect my Idea Without Patent Protection?

If you are yet to work out the mechanisms behind your idea or even document a descriptive illustration of your invention, you may need to consider alternative IP protections. We set out these important protections including documentation, non-disclosure agreements, trade marks, copyright and trade secrets.

1. Document Everything

As an inventor, you should document your invention from idea to execution. Comprehensive notes on the process can assist should you need to dispute the creation of your design. Regardless, documenting the process can be helpful should you need to draw upon your ideas down the track.

2. Non-Disclosure Agreement (NDA)

An NDA is paramount when discussing your idea with third parties, investors and manufacturers. It is important to safeguard your idea with a contract before disclosing any confidential information. If third parties choose not to sign your agreement, you can decide whether or not to disclose any information. You may also like to display a confidentiality statement on your business plan to increase protection.

2. Trade Mark

You may like to register the name of your brand, your domain name or logo. As you develop your idea into a marketable product with commercial potential you may also think about trade mark registration. 

Registering your trademark will provide you with proprietary rights to use the name or logo of your website to distinguish your product from competitors. Trademarking your brand provides protection as your brand grows, consolidating your assets from the early stages. As your product gains traction, your trade mark will compliment other IP protection, and can provide for selling the rights to your product. 

3. Copyright

Under the Copyright Act 1968 (Cth), copyright is automatic after you express your idea in material form. Copyright protection is not available to mere ideas. Your idea must be expressed in a written or illustrated form to attract copyright protection. Copyright protection will exist for the life of the author with an additional 50 years.

4. Trade Secrets

When developing your idea, it’s critical that any confidential information regarding your idea, invention and commercial strategies remain so as they are considered trade secrets.  As mentioned above, you can protect your idea from third parties such as manufacturers, investors and employees through an NDA. It is also important to have a confidentiality and non-compete clause in your agreements, to prevent manufacturers and employees from disclosing trade secrets and also becoming a direct competitor.

5. Manufacturing Agreement

A Manufacturing Agreement governs your relationship with the manufacturer you engage. Both parties agree to the terms and conditions which prevent manufacturers from disclosing your trade secrets, reproducing your invention without permission, soliciting your clients, competing with you product or reproducing your product. It’s important to have the appropriate agreements in place before discussing your idea and the development process.

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Unless you have produced a prototype, it’s hard to patent an idea. That doesn’t mean you can’t rely on other IP protections during the development phase. If you have any questions about protecting your patent, get in touch with our IP lawyers on 1300 544 755.

Sophie Glover

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