Patents are a type of government-granted exclusive right to make, use or sell an invention for a limited period.

  • Patent protection is available for most inventions, whether products or processes, in all fields of technology. However, this is only the case if they are new, useful, possess an inventive step and are capable of industrial application.
  • Patenting an invention can be an expensive and time-consuming process. As an inventor, you need to ensure your invention is novel enough to satisfy the rigorous patenting regulations. You will also need to ensure that the patent application filed to describe the invention meets the legal requirements.

Patents in Australia

A patent is a form of intellectual property. A patent is a licence or authority from the government of the country in which the granted patent gives you, the inventor, the exclusive right to commercially exploit your invention for a limited period of time (20 years for a standard patent). In exchange for the exclusive right, the government requires you to disclose the invention in a public document which includes:

  • a detailed description of the invention;
  • a means of reproducing the invention; and 
  • how the invention differs or is superior to similar inventions in the field.

The Patents Act 1990 (Cth) governs the patent system in Australia. Australia, as with all other countries, is a first-to-file jurisdiction. This means that the first person to file a patent application for a particular invention is given priority over someone that invented the same invention earlier, but did not file a patent application. Essentially, the government will grant the exclusive right to the first person or entity that meets the legal requirements of the exchange.  

 Key Considerations

  • For an invention to be patentable, it must involve an inventive step and be a manner of manufacture, novel, useful and not secretly used in the patent area before filing the patent application.
  • The ‘novelty’ requirement is considered by looking at all the publicly available information at the time of filing, which can include information made public by the inventor.  
  • The date you file your patent application is known as the ‘priority date’. This is essential as it is a reference point that determines the date from which prior art will be excluded when considering the novelty of your invention. Many subsequent deadlines are calculated based on this priority date, such as the date to file your international patent applications.
  • You need to pay annual fees to maintain your patent. These fees will increase during the lifetime of your patent. 

Applying for Patents in Australia

Provisional Application

To be granted a patent, you must apply for a patent with a patent application. This stage of the process is when you would use the terminology ‘patent pending’. The owner of the patent application is called the ‘Applicant’. Once granted, the owner of the patent is called the ‘Patentee’. The Applicant or Patentee can be a person or a legal entity.

The standard application process generally commences with a provisional application that:

  • describes the nature of the invention; and 
  • establishes the priority date. 

However, the priority date is not guaranteed. You will only secure the priority date if your provisional application has enough information to clearly describe your invention and demonstrate that the application relates to an invention that is more than just an idea. When you file your provisional application, you will receive a patent application number. You can then claim ‘patent pending’. 

Once submitted to the Australian Patent Office, the provisional application works as a placeholder for your priority date. The provisional application lasts for a year and is not published. You can use this time to finalise your technology and prepare your complete application. This also helps you to stagger costs. 

Standard Patent Application

If you still wish to pursue your patent after the 12 months, you will have one more opportunity to add more data, description and support for your invention to the patent application before converting it to a standard patent application. The Australian Patent Office will publish this standard patent application 18 months from your priority date.   

In Australia, a standard patent application does not automatically get examined. You will have to request examination of the application and pay the required fees within five years of filing the standard patent application (or sooner, if you are informed to request examination). If you do not do so, the application will lapse. Once the examination is requested, a Patent Examiner will review the patent application and assess whether your invention, and the actual patent application you have filed describing the invention, both meet the requirements to be a patentable invention. Once your examination report is issued, you will have 12 months to deal with any and all of the objections raised by the Examiner so the patent application can be accepted and granted. Failure to overcome the objections in the strictly enforced 12 month period will result in: 

  • the patent application lapsing; and 
  • loss of your rights.  

Frequently Asked Questions about Patents

Q: What types of patents are there?

A: There are two types of patents in Australia: standard patents and innovation patents. Standard patents last for 20 years from the date of the patent. Innovation patents are useful for minor or incremental functional innovations and offer a maximum of 8 years of protection.

Q: If my patent is protected in Australia, is it protected overseas?

A: Patent protection is limited to the country in which the patent was granted. To get international patent protection, you will have to apply for patent protection in each country in which you want to get protection. You can do this either directly or through the PCT (Patent Cooperation Treaty) system. 

Q: What is the priority date and why is it so important?

A: The priority date is the earliest date of filing a patent application. If two different inventors are competing to invent something, the first one to file the patent application will have priority and obtain the patent rights in Australia.  

Q: What is the difference between a 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.  

How Can LegalVision Help Me?

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

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