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Applying For A Patent: A Guide On What Not To Do

Applying For A Patent: A Guide On What Not To Do

There are a range of mistakes made when applying for a patent. This articles outlines these mistakes and discusses why they should be avoided.

8th July 2021
Reading Time: 3 minutes

Applying for a patent is a great way to obtain the legal rights over your own invention. However, there are certain mistakes that many people can fall victim to in patenting their invention. This article outlines the most common patent mistakes and what to do to avoid them at all costs.

What is a Patent?

A patent is simply a registered right to protect ones own invention. A patent grants protection to the patent owner. This protection is the exclusive exploitation their own invention, for the time granted by the patent. Thus, a patent refrain others from commercially benefiting from the patent owners product or invention. For further information of what a patent is, see ‘What Is A Patent?’.

Applying for a Patent

In order to patent an invention or product, you must begin the patent application process in accordance with IP Australia. This generally involves applying for a provisional application, then deciding whether you wish to apply for a standard patent, innovative patent, or international patent. For information regarding the application process, see ‘The Patent Application Process‘.

Common Mistakes when Applying for a Patent

The list below outlines what the most common patent application mistakes are, why they are detrimental and how to avoid them:

Going Public Too Early

It’s exciting when you’ve creating something new and innovative. However, it is extremely important to refrain from publicising or selling you new invention before you have obtained patent protection. Publicising may refer to discussing and announcing the existence or idea of your invention with anyone in the public. The consequence of publicising or selling an invention without a patent is that the creator of the invention will have no legal protection from others stealing and manufacturing their invention. In other words, you run the risk of someone stealing your invention before you are able to apply for patent protection if you go public too early.

Furthermore, there is the consequence that public disclosure will make invention ‘not new’ anymore. ‘Not new’ means that the invention has been known about or sold for 12 months or more. So, if you have already publicised or been selling your invention, you have 12 months from the public disclosure to file your patent application. Once this period expires, that specific invention will not longer be patentable.

Lack of Detail in your Patent Application

A great mistake that many make in their patent applications is simply not providing enough detail about their invention. All patent application require ‘patent specification’ to be provided in detail in order for you invention to be identified as unique. Details must be provided in the form of:

  • Descriptions
  • Claims
  • Abstract
  • Drawings (if applicable)
  • A gene sequence listing (if applicable).

Failing to provide detailed specifications of your invention may result in your application failing or may result in difficulties when an alleged infringement occurs.

Failing to Conduct a Prior Art Search

A prior art search of both patented and non-patented inventions is always a critical step that should never be skipped. A prior art search is simply a search that allows you to determine the distinctiveness of your invention against other similar inventions. It is a way of providing the evidentiary basis to say “There is nothing like [your invention] out there!”. Generally, your invention only needs to have one distinctive or innovative feature in comparison to other similar products. Failure to conduct this search can result in your patent application failing to be approved.

A list of places that should be searched include:

  • Australian and overseas patent databases – including the Patent Corporation Treaty Database,
  • Scientific journals and other publications – including Google Scholar,
  • Existing products,
  • Proprietary databases,
  • Internet searches.

Failing to Consult an IP Expert

Business owners and individuals wishing to apply for patents should always consult an Intellectual Property lawyer before commencing an application Consulting a lawyer can increase your application chances of success and be time efficient in navigating the various steps taken in a patent application.

Final Thoughts

It is important not to fall victim to these common mistakes when applying for a patent. Accordingly, you should never release or announce your invention too early so to prevent yourself from applying for a patent. Regarding your application, you should always provide as much detail as possible and also do a prior art search. It can be extremely beneficial to contact an IP expert to aid you in this process.

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Author
Mai Sarkissian

Mai is a Legal Tech Intern at Lawpath, working as part of the Content Team. She is in her final year of a Bachelor of Laws degree at the University of Wollongong. She is interested in Business and Employment Law.