How to Navigate the Patent Application Process

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Table of Contents

• Two Types of Patent
• Starting the Patent Application Process
• Requesting an Examination
• Key Takeaways

A patent protects new technology that is inventive and useful. A patent gives you the right to stop other people from manufacturing, using or selling your invention in Australia without your permission. It also gives you the right to allow other people to manufacture your invention. This article explains the patent application process.

Two Types of Patent

In Australia, you can be granted two types of patents: a standard patent and an innovation patent. Each has different requirements. Regardless of which type of application you pursue, your invention must:

• be useful in terms of having commercial potential;
• do what you claim it will do; and
• be previously unrevealed in public (including by yourself at trade shows, online or in publications).

For a standard patent, your invention must be both new and have an ‘inventive’ step. Being new means that your invention must differ from anything that already exists. An inventive step means that it would not be obvious to someone in the relevant industry.

An innovation patent protects inventions with a short market life that do not meet the inventive threshold required for the standard patent. Instead, your invention must have an ‘innovative’ step. An innovative step is one where the invention is different from what is already known and the difference contributes in a substantial way to the operation of the invention.

To ensure that your invention meets these thresholds, it is essential that you perform adequate searches before starting the patent application process.

Starting the Patent Application Process

Regardless of which type of patent you are applying for, the first decision is to decide whether you want to make a provisional or complete application. A provisional application will give you a priority date and acts as a placeholder. It does not give you any protection on its own but signals your intention to file a full patent application at a later stage. However, to claim this priority date, you must then file the full patent application within 12 months of filing the provisional application.

A provisional patent application must include a provisional patent application form with a provisional specification (description of your invention), along with the filing fee. The specification should include details of the invention, because when converting the provisional patent to a complete application, you may not be able to add new material.

To file a complete patent application, regardless of whether you hold an existing provisional patent, you must include:

• a patent request form;
• complete specifications including abstracts; and
• the filing fee.

The patent request form will form the basis for your patent application, so it is a very important document. The description must contain all necessary information and drawings about the technical details of the invention.

Once IP Australia receives your complete patent application, they will assess it to determine whether you have included sufficient details. If so, your application may move to the examination stage.

Requesting an Examination

After IP Australia determines you submitted a correct application, it will publish the application in the Australian Official Journal of Patents. However, you will then need to request IP Australia to examine the patent. You will not be able to legally enforce your patent until it passes the examination process. You must make this request within five years of making the application.

Examination entails IP Australia assessing your invention to determine if it meets the relevant threshold. Either new and inventive for a standard patent, or innovative for an innovation patent.

During this examination process, anyone may inspect your application and oppose it. For example, they may argue that your invention is too similar to what is already on the market. If so, you will have the right to respond.

Should your application pass the examination stage, IP Australia will grant you the patent.

Key Takeaways

If you have created a new invention, registering a patent gives you exclusive rights. These rights will give you time to manufacture and sell the product without having to worry about competition.

However, to pass the patent application process, your application will be subject to an examination and opposition process. Therefore, before starting your application, you must conduct sufficient research to ensure that your invention meets the patent threshold requirements. You must also ensure that your invention has never previously appeared in public.