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Obtaining a patent

By CCIWA Editor 

Once you’ve decided that a patent is right for your business after considering all other options, it’s time to start applying. 

There are two types of patents in Australia – standard patent and innovation patent. Choosing which is the best option depends on the nature of your invention. 

Standard patent

A standard patent provides the owner of a completely new product with a long-term monopoly to commercialise that invention.  

Criteria:  

  • must be new.  
  • must involve an inventive step.  
  • must be able to be made or used in an industry.  

‘New’ means information about the invention must not be in the public domain in any form. 

An ‘inventive step’ is defined by IP Australia as “not being an obvious thing to do for someone with knowledge and experience in the technological field of the invention”. This difference must be “something more than the simple application of published information or standard background knowledge”. 

The protection period is 20 years from date of application (25 years for pharmaceutical substances) and IP Australia must examine the invention. 

Innovation patent 

This is a relatively quick and inexpensive way to protect an advance on existing technology rather than a completely new invention.  

Criteria: 

Requires an innovative step rather than an inventive step. An innovative step is defined by IP Australia as existing “when the invention is different from what is known before and the difference makes a substantial contribution to the working of the invention”. 

Advantages over standard patent:  

  • Suited to inventions with a short commercial life. 
  • Suited to inventions with relatively minor advances over existing technology that may not qualify for a standard patent.  
  • Cheaper than a standard patent. 
  • Quick and easy to obtain. 

The Protection period is eight years from date of application. While an examination is not mandatory, your invention must be examined at some stage if you need the innovation patent to be legally enforceable.   

Which application type? 

Provisional  

This is an option you can choose before you apply for a full patent. It simply prevents anyone subsequently applying for a patent for your invention for a period of 12 months. If you don’t apply for a full patent before 12 months, you lose your priority date. A provisional application is optional. 

A provisional application is useful:  

  • if you need the earliest possible priority date (good if your invention is up against competition that is constantly being updated)  
  • to give you a year to decide if it’s worth applying for a full patent. 

You must fill in a complete application for either a standard or innovation patent to be granted.

Details about processes for different types of patent are available on IP Australia’s website: 

International applications  

If your IP strategy deems that patents are necessary to protect your export markets, you’ll have to apply for patents in each country. A global patent doesn’t exist.  

If you only need to file in a few countries, you can file applications separately in each country. Or you can use the Patent Cooperation Treaty (PCT) to file just one application to simultaneously start the process of applying for patents for up to 151 countries (other than Australia).  

The PCT application process, which includes an examination stage, aligns with a set of standards accepted by all countries that are signatories to the treaty.  

Detailed information about the process for international applications can be found on IP Australia’s website. 

 

Once you’ve decided that a patent is right for your business after considering all other options, it’s time to start applying.  There are two types of patents in Australia – standard patent and innovation patent. Choosing which is the best option depends on the nature of your invention. 

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