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Note from 25 August 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.

A patent is a set of exclusive rights granted over any device, substance, method or process that is new, inventive and useful (an Invention), for a limited time after a successful application process. Similar to trade marks, it is a registrable right granted by the country of registration. An applicant for a patent has to disclose the substance of the invention, making the information available to the public. Consequently, some inventors make the business decision not to disclose their patents, instead opting to keep their invention confidential as a trade secret.

Over the coming weeks, we will explore the topic of patents and its application process in Australia. Last week, we explored what is a patent and the threshold requirements to securing this valuable intellectual property right. This week, we will look at the different types of patents applications available in Australia.

There are different types of applications you can make to IP Australia in relation to patents. These are:

  • Provisional Patent/Provisional Applications;
  • Standard Patent;
  • Innovation Patent; and
  • International Patent (PCT).

Types of Patent Applications

1. Provisional Patent

Provisional patents are useful to establish the priority date of your claim. A provisional patent is technically not a type of patent and doesn’t give you patent protection on its own. A provisional patent is optional to securing a patent, but it is useful if you operate in a highly competitive industry.

What a provisional patent grants you is the time to decide whether to continue the patenting process. It also allows you to work or refine your patent claim before making a complete patent application. A provisional patent is valid for a period of 12 months. This period cannot be extended. Also note that you must disclose details about your invention when filing a provisional patent.

2. Standard Patent

A standard patent grants the inventor protection and control over an Invention. This type of patent protection will be granted if the Invention is inventive, capable of being industrially applied, and useful. It must differ from existing technology. This means a standard patent is more likely to be granted if your invention is something new.

To secure a standard patent, you must file a complete application (or if you have been granted a provisional patent, you must complete your application). This type of patent offers protection up to a term of 20 years (up to 25 for pharmaceutical substances) subject to renewal. There are no limits on how many claims you can make under a standard patent.

3. Innovation Patent

An innovation patent offers the same level of protection as a standard patent over an Invention but for a shorter duration. This patent protects Inventions for up to 8 years. Unlike a standard patent, an innovation patent does not need to meet the inventiveness threshold. Instead, an innovation patent will be granted if the Invention is innovative. This patent protection is for an invention with a short market life that might be superseded by newer inventions. This type of patent is also less expensive and has a lower threshold to satisfy (requiring an innovative, instead of inventive, step), making it better suited for small to medium size businesses. We note that for an Innovation Patent, you cannot make more than 5 claims.

An innovation patent may be granted without being examined by IP Australia. However, this limits your patent rights because you will not be able to enforce an innovative patent in court until it is examined and certified by IP Australia. Without prior examination and certification, it may also be difficult to exploit the patent.

4. Patent Co-op Treaty (PCT)

The PCT is a treaty with 148 partner countries providing for international application of patents. This system facilitates patent application in multiple countries through one process, administered by the World Intellectual Property Organisation (WIPO). If you are looking to secure a patent in multiple countries, a PCT application can simplify your application process but it does not grant you a patent in those countries. You must still apply for a patent directly with the individual country.

Conclusion

There are different avenues and methods to protecting your invention, and securing a patent is one of them. Unfortunately, securing a patent is not a simple or straightforward process. This process can be more complex and lengthy if you are looking to secure your patent in multiple jurisdictions. Our team of IP lawyers and patent attorneys have extensive experience in this area and would be happy to assist with protecting your invention. To speak with a member of our team today, contact LegalVision on 1300 544 755.

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