What is a Patent?

A patent is a form of intellectual property that is an exclusive right granted by the Commonwealth Government for a period of time. A patent is legally enforceable and prevents others from exploiting your invention for a particular period of time. To acquire this exclusive right, 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 in exchange for the complete details of the invention.

What is Intellectual Property?

Many businesses have some form of intellectual property (IP) they need to protect. IP is a creation of the mind that can be legally protected. It is possible to secure the following forms of IP protection in Australia: a patent, trade mark, copyright, design registration, plant breeder’s rights or circuit layout. For the longevity and success of your business, it is important to protect your IP to prevent your competitors from using your valuable assets.

Who Can Apply for a Patent?

The following people are eligible to apply and can own a patent:

  • the inventor(s);
  • a company or organisation (this includes if an employee had developed a patent in the course of employment); or
  • a person who has obtained the rights to an invention. In this instance, a firm or partnership will be unable to hold a patent.

In addition to the eligible person or organisation, IP Australia requires an address for service and correspondence. This can be an international address.

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; and
  • Involve an inventive or innovative step, when compared to typical existing methods in a similar field or industry. It needs to be non-obvious.

What Patent Protections Are Available in Australia?

There is a Provisional Patent as well as two types of “Complete” Patents available in Australia. These are innovation patents and standard patents.

What is a Provisional Patent Application?

A provisional application provides 12 months protection for your invention and is often the initial application to be lodged by inventors. The provisional application allows patent applicants to file a broad description of their inventive concept in a provisional application. To obtain continuous protection for a patent, it is important to lodge the complete patent application within the 12 month period. The provisional patent allows an individual to lock in priority protection of their initial invention. The full patent application will include an updated description and application to reflect the final invention to be claimed.

What is a Standard Patent?

A standard patent offers protection for your invention for up to 20 years. Before being granted, a standard patent must be assessed and this can take several months to years. Standard patents do not have a limit to claims or disclosures made.

What is an Innovation Patent?

An innovation patent can last up to 8 years, and has a limit to five claims. Innovation patents can be attractive as they have a lower threshold of patentability and are often obtained within a month. Innovation patents are often ideal for inventions with a short life span or a technologically simple. For instance, an innovation patent can be ideal for inventions that you would like to commercialise quickly.

What is a Patent Priority Date?

The first patent application you lodge for your invention becomes the priority date for your invention. This date becomes the date at which the novelty of your invention is compared to prior disclosures. As a rule, the priority date is the first time your patent application is filed. A provisional patent application can be the best way to establish an early priority date.

When Can You Use Patent Pending?

The term ‘patent pending’ can be used once you have filed a complete patent application. If you have filed a provisional patent application, the term ‘patent application filed’ can be used.

How Long Does a Standard Patent Application Take?

A standard patent can take months to years to be granted, typically around two years. The time frame of acquiring the standard patent is examined by IP Australia to ensure it meets the formal requirements and considers the patentability of the invention. If there is an issue with the patent, objections will be raised by IP Australia or third parties. Once objections are overcome, the patent will be then granted.

How Long Does an Innovation Patent Application Take?

An innovation patent was brought about as it offered a fast and efficient patent grant. It can be obtained between one to six months of the application. This patent is not examined. To be able to enforce this patent against an infringer, you will need to request IP Australia examine the patent.

Does an Australian Patent Offer Worldwide Protection?

No – an Australian Patent does not offer worldwide protection. In fact, there is no patent that allows for worldwide protection. You must directly apply country by country.

It is typical to apply for patent protection in the countries you intend to manufacture your product or invention, as well as the countries you intend to commercialise your product or invention.

How Do I Obtain International Patent Protection?

There are two options when applying for an international patent application.

  1. A patent application can be lodged in each country that you intend to patent your invention in. A direct application can be cost effective if you want to protect your invention in a few country.
  2. Alternatively, a single international application under the Patent Cooperation Treaty (PCT) provided by the World Intellectual Property Organisation (WIPO). This provides Patent protection in 148 countries; this includes Australia, and your PCT application will become your standard patent in Australia. The PCT application provides for separate applications in each country that are compliant with the Treaty simultaneously. Any IP rights obtained are granted by national or regional systems, although based on the same standard PCT application and criteria. It is important to note that the Australian provisional application can act as a priority document for the PCT application submitted within the 12-month time frame of a PCT application.

Are There Ongoing Patent Costs?

During the process of your patent application, you will be liable to pay continuation fees, and after the patent has been granted, renewal fees are due. During the fifth year of the complete patent application, an annual fee will be due. Fees will also apply to international applications. If the fees remain unpaid, the patent or patent application will lapse.

How Does a Patent Protect My Invention?

Acquiring a patent for your invention ensures that you will have a monopoly of a set of claims in your patent. If infringement occurs, this will fall within your patentee’s monopoly. If you are suspicious that another party is infringing your rights, it is your job to police your patent and consult an IP lawyer before approaching your infringer. This will allow you to determine your next steps and what type of legal action will successfully aid your mark.

How Do You Make Money With A Patent?

A patent can be licenced or sold to investors as they are a defined monopoly of legal rights. A patent is a valuable commercial asset similar to a building, piece or land or plant machine.

Can You Extend a Complete Patent Application?

Certain pharmaceutical patents can be extended for up to 5 years from the standard patent application (20-year term). An extension of the patent term must be filed within six months of the day the patent was granted.

What is Needed to Complete a Patent Application?

An Australian patent application requires the following information:

  1. The applicant’s full name and address;
  2. Name and address of each applicable inventor;
  3. A patent specification with drawings; and
  4. Details of any convention or priority claim.

What is Patent Commercialisation?

Patent commercialisation refers to the ability to practice the invention that has been granted. This can be from the inventor or it refers to licensing or assigning the patent ownership to other parties. If the patentee does not work a patent invention, a compulsory licence may be granted by the patentee or the patent may be revoked within two years after a grant of compulsory licence. A compulsory licence is granted by the court and is a licence to commercial or work a patented invention. These mechanisms prevent patentees or patent trolls from abusing the patent system.

If you have any questions about registering a patent, get in touch with our patent lawyers.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.
Sophie Glover

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