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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.

Over the coming weeks, we will explore the topic of patents and its application process in Australia. This week, we will give a general overview on what is a patent and the threshold requirements to securing this valuable intellectual property right.

What is a Patent?

A patent is a set of exclusive rights granted over any device, substance, method or process that is new, inventive and useful, 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 invention, instead opting to keep their discovery confidential as a trade secret.

Securing a patent can be a difficult, complex, and lengthy process. This is due to the high statutory criteria that must be satisfied in order to secure a patent. Note that whilst different intellectual property rights can subsist in an invention, being able to secure a patent will grant you strong protection over it. Due to the strength of this right, the duration to a patent is much more limited compared to other intellectual property rights. The duration of a patent also varies depending on the type of patent. The types of patents will be explored in the next article in this series.

The process to securing a patent can become more involved if you are seeking to patent in more than one jurisdiction. That is, if you acquire a patent over your invention in Australia, you may also consider applying for a patent in other jurisdictions including the United States and Europe in order to hold monopoly over your invention in countries where you are likely to market and sell your invention.

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.

Conclusion

There are different avenues and methods to protect 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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