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Note from August 25 2021, the innovation patent will cease to exist. After this date, you can only file a divisional innovation patent if it is based on a previously filed patent. Read more about this change in our article.

Have you created an invention?  Do you know how to protect it?

Once you have created an invention, it is important to consider which type of patent to apply for.

There are two key types of patents: (i) standard patents and (ii) innovation patents.  They differ in key points which may make a big difference to you.

While it is best to seek legal advice, you may like to conduct some independent research of your own to gain an understanding of the options that are available to you in protecting your interests in your invention.

Both standard and innovation patents will give the owner complete rights to make, use and assign the rights in an invention. However, these two types of patents differ in the length for which they will provide an owner with a monopoly on the rights and the requirements that must be met to obtain them.

Standard patents 

The key features of standard patents are as follows:

  • The invention must be new, involve an inventive step, be useful and not be the subject of secret use;
  • It provides a 20 year monopoly to you as the owner of the patent; and
  • The application is examined before the patent is granted.

If the invention is ground-breaking and presents unprecedented qualities that have not been seen before in your industry, then a standard patent is the most appropriate patent to apply for. However, a standard patent may be more expensive and lengthy since the application must be examined.

A standard patent also provides a 20 year term of protection which is much longer than the period of eight years that an innovation patent would provide.

Innovation patents

The main features of an innovation patent are:

  • The invention must be new and involve an innovative step rather than an inventive step;
  • It provides for an eight year monopoly for you as the owner of the patent; And
  • The application is granted immediately but must be examined before your rights are enforceable

The standards to be met to apply for an innovation patent are lower than that of a standard patent since the invention needs to be innovative rather than inventive. If your invention makes a leap on technology that already exists in your industry, then it is probably better to apply for an innovation patent. However, you will only be protected by this patent for eight years, which may expose you to competitors unless you renew your patent after this time. Nevertheless, with technology developing at a high rate, the 20 years of protection that is given under a standard patent may not be necessary to protect your interests.

What if I change my mind?

Luckily, if you make an application for an innovation patent and later change your mind, you can convert this patent into a standard patent. However you must notify the relevant authorities of this change in mind before the innovation patent is accepted. Innovation patents are usually checked within one month and so you will have one month to make your intentions known. This conversion also works in the other way where a standard patent can be converted into an innovation patent.

Conclusion

It’s much better to choose the correct category under which you apply for your patent, rather than getting this wrong and applying to convert your patent later on.

It is wise to consult a patent lawyer to correctly identify whether to apply for a standard patent or an innovative patent for your creation.

For more information on patents and general intellectual property law, please see: https://legalvision.com.au/category/intellectual-property/

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