In Short
-
There are four types of patent applications: provisional, standard, innovation (until 2021), and international (PCT).
-
A provisional patent establishes a priority date but doesn’t provide protection; it’s a first step.
-
A standard patent provides long-term protection (up to 20 years), while an innovation patent offers shorter protection (8 years) with fewer requirements.
Tips for Businesses
Consider applying for a provisional patent to secure your priority date while refining your invention. If your invention is unique, a standard patent offers long-term protection. If you’re a small business with a shorter product lifespan, an innovation patent might be a cost-effective option (though unavailable after 2021).
Applying for a patent is an important part of protecting your ideas, but it can be a complex process. A crucial first step is identifying what type of patent is most suitable for your invention and your commercial goals. By having a good understanding of the differences between types of patents, you can ensure that your patent becomes a valuable investment. This article will explore the different types of patent applications available to you as an inventor.
Explaining Patents
A patent is a form of intellectual property (IP) protection over a new and inventive device, substance, method or process. With a patent, you have an exclusive right to make, sell, or distribute your invention for a limited time. You must disclose details of your invention when applying for a patent. This will make the information available to the public and give them access to your invention once the patent expires.
As an inventor, there are different types of patent applications available to you:
- Provisional Patent;
- Standard Patent;
- Innovation Patent (up until 25 August 2021 in Australia); and
- International Patent (Patent Cooperation Treaty).
We explore each application below.
Provisional Patent Application
Applying for a provisional patent is an optional first step to securing a patent. A provisional patent is valid for 12 months. After this, you can choose to convert your provisional patent to a standard patent in Australia or apply internationally. Provisional patents are useful for establishing the priority date or the date that you first file your patent application.
When you apply for a standard patent, you can use this earlier priority date on your application. A provisional patent application also gives you “patent pending” status. During this time, you may wish to start disclosing your product to the public. If you operate in a highly competitive industry, this can benefit your strategy by deterring competitors whilst also attracting investors.
Importantly, however, provisional patents do not give you patent protection, and you will not have enforceable rights.
Standard Patent Application
A standard patent grants you protection and control over your invention. A standard patent application will be successful if your invention is:
- inventive;
- able to be industrially applied; and
- useful.
Likewise, your invention must differ from existing technology, meaning that you are more likely to be successful if your invention is something unique and can meet this high threshold of novelty.
This type of patent offers protection for up to 20 years (up to 25 years for pharmaceutical substances) and is subject to renewal. There are no limits on how many claims you can make under a standard patent.
You may be considering applying immediately for a standard patent without a provisional patent. However, there are risks involved. For example, your standard patent protection becomes fixed to your invention as it was when you filed the application. If you continue to modify or refine your invention past this, your original standard patent will not protect those developments.
Innovation Patent Application
An innovation patent offers the same level of protection as a standard patent. However, it only lasts for eight years costs less to apply for and typically will require a lower threshold of inventiveness. You do not need to meet the inventiveness test to apply for an innovation patent. For example, you may be using existing materials to create something innovative.
If your invention has a short market life and you are a small to medium business owner, you may consider applying for this type of patent.
Notably, since 25 August 2021, you can no longer apply for an innovation patent in Australia. This decision was made based on a few key goals to protect Australian intellectual property, including in particular:
- larger businesses strategically applying for cheaper innovation patents to stifle competition;
- genuine innovation and competition behind inhibited by the low standard for an innovation patent; and
- the risk that overseas competitors will exploit the disclosed innovation, as Australian innovation patents are not recognised overseas.
Patent Cooperation Treaty
The Patent Cooperation Treaty (PCT) has 153 member countries globally, including Australia. This system facilitates patent applications in multiple countries through one process administered by the World Intellectual Property Organization (WIPO). If you are planning to patent your invention overseas, a PCT application can indicate if it will be able to be patented internationally and may help you decide which countries you would seek protection in. Though a PCT application can simplify your application process, it does not grant you a patent in those countries. You must still apply for a patent directly to your individual countries of choice.
The LegalVision Startup Manual provides guidance on a number of common challenges faced by startup founders including structuring, raising capital, building a team, dealing with customers and suppliers, and protecting intellectual property.
The guide includes 10 case studies featuring Australia’s top VC fund partners and leading Australian startups.
Key Takeaways
The type of patent application that is right for you will depend on your goals for protection and the stage of development of your invention. You can apply for several types of patents, including a:
- provisional patent;
- standard patent;
- innovation patent (up until 25 August 2021 in Australia); and
- international patent (Patent Cooperation Treaty).
A provisional patent application is a common and attractive way of starting this process. It secures your priority date while buying you time to develop your technology or invention further. Applying for a patent can be more complex and lengthy if you are looking to secure your patent in multiple countries or states.
Frequently Asked Questions
Provisional patents are useful to establish the priority date of your claim. A provisional patent does not technically give you patent protection on its own and is not an enforceable right. However, lodging a provisional patent application gives you “patent pending” status and allows you further to refine your invention for up to 12 months.
The key differences between standard and innovation patents are their duration and the thresholds of inventiveness you need to meet. A standard patent lasts for 20 years and has a higher threshold of novelty, whereas an innovation patent lasts for 8 years and requires a lower threshold.
A PCT application simplifies the process of taking your application internationally but does not grant you worldwide patent protection. You must then go through applying for a patent in each country of interest to secure a granted patent.
We appreciate your feedback – your submission has been successfully received.
