• A patent is a government-granted exclusive licence to make, use, or sell an invention for a limited period.
  • Patent protection is offered for any inventions whether products or processes in all fields of technology provided they are new, possess and inventive step and are capable of industrial application.
  • Patenting an invention is an expensive and time-consuming process. Inventors need to ensure their invention is unique enough to satisfy the relatively rigorous patenting regulations.

Patents in Australia

A patent is a form of intellectual property, which is a licence or authority from the government which gives an inventor the exclusive right to commercially exploit their invention for a limited period of time (20 years for a standard patent). It requires disclosure in a public document of the means of reproduction of the invention.

In Australia, the Patent System is governed by the Patents Act 1990 (Cth). The invention has to be novel and sufficiently inventive to be the subject of a patent. Patents grant temporary exclusive economic rights in respect of the use and exploitation of inventions in order benefits society through encouraging innovation and promoting the disclosure of scientific knowledge

Key Considerations

  • For an invention to be patentable, it must be a manner of manufacture, novel, involve an inventive step, useful and not secretly used in the patent area before application.
  • The priority date is the date the application was first filed. It is important as it is a reference point that determines the priority of patents.
  • You need to pay annual fees to maintain your patent. Innovation patents can be renewed for up to eight years, and standard patents can be renewed for up to 20 years (up to 25 years for pharmaceuticals).

Applying for a Patent

You can be granted a patent if you are an inventor, a person who would, on the grant of the application, be entitled to have the patent assigned, a successor in title or a legal representative of the deceased estate.

The standard application process commences with the provisional application that describes the nature of the invention and establishes the priority date. The complete application is published at the request of the applicant or after 18 months.

Examination takes place next, which generally involves an assessment by the patent examiner that the patent specification describes the invention fully, its claims are fairly based on the specification and the invention claimed is a manner of manufacture, novel and involves an inventive step. This must be requested within five years of the filing date. If there are no contested applications, the patent is accepted within six months.

Frequently Asked Questions about Patents

Q: What types of patents are there?
A: There are two types of patents: standard patents and innovation patents. Standard patents last for 20 years from the date of the patent. Innovations patents are aimed at minor or incremental functional innovations, with a maximum of 8 years protection.

Q: If my patent is protected in Australia, is it protected overseas?
A: Patent protection is limited to jurisdiction within the country in which the grant was made, to get international patent protection one has to seek patent protection in each country in which you want to get protection. You may also choose to register an international (PCT) patent. PCT stands for patent cooperation treaty and is a system that 148 countries adhere to.

Q: What is the priority date and why is it so important?
A: The priority date is the date of filing a patent application. If two different inventors are competing to invent something, the first one to file the patent application will get priority in Australia and get patent rights in Australia, and the runner up will be infringing the earlier patent.

Q: What is the difference between discovery and an invention?
A: A discovery is not patentable, as it is just an understanding of something that already exists in nature. An invention must be the translation of a discovery into something new, useful and capable of industrial application that leads to a manner of manufacture being produced.

Q: How do I oppose a patent application?
A: Third parties can file a notice of opposition to grant within three months of the publication of notice of acceptance.

How can LegalVision help me?

LegalVision provides businesses and individuals with tailored online legal advice, including patenting. As it is difficult to manage a patent application without the assistance of a patent attorney, contact LegalVision to advise you on which type of patent is most suitable for your business.

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