Developing something unique and innovative is an incredible feat of creativity that can go a long way in attracting attention in your field of interest. Can your creation be patented? This will provide a range of safeguards for inventors against a competitor stealing and reproducing their creations.

What is a Patent?

A patent is a legally enforceable right that can be granted in relation to a device, substance, method or process which is new, inventive and useful.  A patent is a legally enforceable instrument. A patent provides that you are the owner of the invention, with the exclusive rights to market this patent to generate income for your business. Why patent your invention? Benefits of patenting an invention include the fact that it:

  • Gives inventors the right to stop competitors from producing or selling inventions without authorisation.
  • Allows inventors to generate money from their inventions by licensing other parties to manufacture the inventions on agreed terms.
  • Gives inventors an incentive to continue researching and developing new creations.

What are the Types of Patents?

There are two main types of patents that can be registered in Australia – these are standard patents and innovative patents. Inventors can file a provisional application which allows for 12 months to consider the commercial worth of the creation, and for the inventor to decide which class of patents the creation will be registered in. Under the Patents Act 1990 a standard patent can be registered for an invention that is new, involves an inventive step, is useful and is not the subject of secret use. An innovative patent can be registered for an invention that satisfies the same criteria as a standard patent, however this invention must be innovative rather than inventive. An inventive patent may be more appropriate for inventions that further advance existing technology.  An innovative patent may be more appropriate for an invention that provides a revolutionary creation in a particular industry.

What if a Patent is Not Registered?

Inventors are not compelled to register their patents.  An unregistered patent is generally known as a trade secret. There are two outcomes that may follow from not registering an invention:

  • By keeping the invention as a trade secret, a competitor may discover this secret and proceed to patent it under his/her own name or a competitor may come up with this invention through his/her own discovery.
  • An inventor may choose to reveal the invention to the public. This may prevent a competitor from being able to later patent this invention, as it has now become part of the public knowledge.

Key Takeaways

Patent law is a specialised field.  It is important to seek legal advice in relation to the options that are available, as there are numerous options. A patent lawyer may assist an inventor to find the best possible avenues to protect your interest in your creation. For more information on patents, please see IP Australia’s website.

Lachlan McKnight
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