Table of Contents
- What Are Patents?
- Who Can Apply for a Patent?
- Is My Invention Eligible for Patent Protection?
- What Patent Protections Are Available in Australia?
- What Is a Provisional Patent Application?
- What Are Standard Patents?
- What Are Innovation Patents?
- What Is a Patent Priority Date?
- When Can You Use Patent Pending?
- How Long Does a Standard Patent Application Take?
- Do Australian Patents Offer Worldwide Protection?
- How Do I Obtain International Patent Protection?
- How Does a Patent Protect My Invention?
- How Do You Make Money With Patents?
- What Is the Difference Between a Discovery and an Invention?
- Key Takeaways
This article sets out some frequently asked questions about patents in Australia.
What Are Patents?
A patent is an exclusive, legally enforceable right that prevents others from exploiting your invention for a particular period of time. To acquire this exclusive right in Australia, you must first file a patent application with IP Australia.
Patents allow the inventor a temporary monopoly of an invention and the legal authority to make, sell or use the claimed invention for a set period. However, the owner gains these rights in exchange for sharing the complete details of the invention.
Who Can Apply for a Patent?
You may apply for a patent if you are:
- the inventor of the invention;
- a company or organisation (including where an employee has developed a patent in the course of their employment); or
- a person who has obtained the rights to an invention (however, a firm or partnership will be unable to hold a patent in this situation).
Is My Invention Eligible for Patent Protection?
For your invention to be patentable subject matter, it must:
- be new (novel), when compared to other disclosures in the world;
- involve an inventive or innovative step, when compared to typical existing methods, systems or products in a similar field or industry; and
- meet the thresholds of ‘manner of manufacture’ law.
What Patent Protections Are Available in Australia?
There are two types of patents you can apply for in Australia. These are innovation patents, which have an 8 year term, and standard patents, which have a 20 year term.
What Is a Provisional Patent Application?
A provisional patent application is a document you submit to a patent office to secure a priority date for a new invention.
The provisional patent application allows 12 months for an inventor to further refine and develop their invention before committing to the process of a formal patent application. However, a provisional patent application is the ‘patent pending’ stage and does not indicate an enforceable right. Provisional patent applications expire after 12 months, whether or not the inventor files a complete patent application.
What Are Standard Patents?
A standard patent offers protection for your invention for up to 20 years, or up to 25 years for patents claiming pharmaceutical substances.
Before being granted, however, a standard patent must be examined by the patent office to make sure it meets legislative requirements. This step can take several months or years.
What Are Innovation Patents?
An innovation patent can last up to 8 years. Innovation patents can be attractive as they have a lower threshold of patentability and will often proceed to a “soft” grant within a month. Therefore, innovation patents can be ideal for inventions which:
- have a short life span;
- are technologically simple; or
- represent an improvement over existing technology.
An innovation patent is only enforceable if it has been examined and certified by the Australian patent office and found to meet the requirements of the patentability.
However, IP Australia has begun the process of phasing out the innovation patent with the passing of legislative amendments. The last day you can file an innovation patent will be 25 August 2021.
What Is a Patent Priority Date?
Your patent priority date is the date on which you lodge the first patent application for your invention. This date becomes the date from which the patent office compares your invention to prior disclosures in terms of novelty and inventiveness.
A provisional patent application can be the best way to establish an early priority date. This is because it secures your priority date and provides an additional 12 months to further develop your invention and finalise your complete application.
When Can You Use Patent Pending?
You may use the term ‘patent pending’ once you have filed a patent application. This can be a provisional patent application or a complete patent application, such as:
- a standard patent application;
- a PCT patent application; or
- an innovation patent application.
How Long Does a Standard Patent Application Take?
A standard patent can take months to years to be granted, depending on the:
- patent pathway you take; and
- patentability of the invention (which will influence the time it takes to examine the patent application).
Do Australian Patents Offer Worldwide Protection?
An Australia Patent does not offer international patent protection. In fact, there is no patent that provides worldwide protection. Instead, you must directly apply in each country where you want to seek patent protection for your invention.
It is typical to apply for patent protection individually in each country where you intend to:
- manufacture your product or invention; and
- commercialise and sell your product or invention.
How Do I Obtain International Patent Protection?
There are two options when applying for an international patent application. First, you can lodge a patent application directly in each country where you want a patent right. A direct application can be cost effective if you only want to protect your invention in a few countries.
Alternatively, you can file a single international application under the Patent Cooperation Treaty (PCT). This can provide a delayed jumping off point for filing patent applications in multiple countries. An Australian provisional application can act as a priority document for a PCT application submitted within 12 months of filing the provisional application.
How Does a Patent Protect My Invention?
Acquiring a patent for your invention means that:
- any party that copies your invention will be infringing your patent rights; and
- you will be able to assert and enforce your rights against any infringers.
How Do You Make Money With Patents?
As a patent owner, you can licence or sell your patent to investors. Therefore, a patent is a valuable commercial asset, similar to a building or a plant machine.
What Is the Difference Between a Discovery and an Invention?
Essentially, a discovery is just a new understanding of something that already exists. Therefore, a discovery is not patentable. An invention must be the translation of a discovery into something new, useful and capable of industrial application that leads to a manner of manufacture being produced.
Key Takeaways
Patents are an important way to protect your IP. However, obtaining a patent is a complex process, and it is difficult to manage a patent application without the assistance of a patent attorney. Therefore, you should always seek professional assistance to ensure that you protect your IP properly.
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