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.

Whilst a patent grants an exclusive, time-limited monopoly over an Invention, there are exclusions to what can be protected under patent. Registration will only be granted to an Invention that is a patentable subject matter. This means the subject matter of the patent must have a manner of manufacture in order to be a patentable subject matter. A subject matter must have an inventive step (for a standard patent) and an innovative step (for an innovation patent). However, not everything is patentable. Below we discuss the criteria in Australia you must satisfy to receive a grant of patent.

What are the Threshold Requirements for Getting a Patent?

To successfully apply for a patent in Australia, there are three key issues to consider. These are:

  • A patentable subject matter: The subject matter of the patent must have a manner of manufacture in order to be a patentable subject matter. What is a patentable subject matter will vary between a standard patent and an innovation patent.
  • Substance of the subject matter: A patent will only be granted for true Inventions.
  • Disclosure requirement: A patent application must make the appropriate and correct disclosure because the form of your patent application will be heavily scrutinised. This disclosure may also affect the validity of your claim. If you fail this disclosure requirement, e.g. you make a mistake in your application, your patent application may also fail.

Statutory Requirements

To receive a grant of patent in Australia, an applicant must satisfy the statutory criteria set out in the Patent Act 1990 (the Patent Act). Specifically, what qualifies as a Claim for a patentable Invention is set out under the Act.

For standard patents, the patent must:

  • be an Invention;
  • have a manner of manufacture;
  • be novel;
  • have an inventive step;
  • be useful; and
  • not be secretly used.

For innovation patents, the key difference to the criteria for a standard patent is that the innovation must contain an innovative (instead of inventive) step.


There are different avenues and methods to protecting your Invention, and securing a patent is one of them. Unfortunately, securing and protecting 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.

Lisa Lee
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