Introduction
If you are in the business of creating new and inventive things, it is important for you to know if more than one person can apply for a patent. This is because inventions are often the result of collaborative effort. In this guide, we’ll answer this by first explaining what a patent is and who can apply for one in Australia. Then, we’ll explain who can be granted a patent. Finally, we’ll briefly consider Patent Cooperation Treaty (‘PCT’) patents, before summing it all up at the end.
What is a patent?
Put simply, a patent is a bundle of exclusive rights over inventions. These rights allow you to deal with the invention exclusively for a particular period of time. This includes things like making it, selling it, or using it. IP Australia handles Australian patent applications. There are different types of patents you can apply for. The two main ones are standard patents and innovation patents. Standard patents are for 20 years of protection, while innovation patents are only for 8 years. We’re going to focus on standard patents in this guide as Australia is moving to phase out innovation patents. There are also ‘Convention applications’. These are basically applications made by people who have made patent applications in certain countries other than Australia.
Who can apply for a patent?
Now we know what a patent is, we’ll look at who can apply for a patent. Whether or not more than one person can apply for a patent depends on how they apply. We’re going to look at the cases of companies and joint applicants.
Company applications
Under s 29 of the Patents Act 1990 (Cth), any person can apply for a patent. A person includes a ‘body of persons’. For example, we consider almost any company in Australia to be a ‘body of persons’. Therefore, technically more than one person can apply for a patent as a single applicant if they’re a company or other eligible ‘body of persons’. This raises interesting questions as to who gets a patent over employee inventions. The Patent Manual of Practice and Procedure indicates that the inventor could be either the employer or employee depending on the terms of the service agreement. Alternatively, both parties can make a joint application.
Joint applications
Apart from companies applying for patents, it is also possible for there to be more than one applicant under a single patent application (‘joint application’). This can be multiple individuals or multiple companies/organisations. For example, multiple applicants can apply jointly for a standard patent in Australia. Additionally, joint applicants in other jurisdictions can apply jointly for a Convention patent in Australia. Joint applicants who are successfully granted a patent take equal shares in the patent rights. For example, you would have to split the proceeds of sales of your invention equally.
Who can be granted a patent?
While any person can apply for a patent, only certain persons can actually get one (i.e. successfully be granted one). For the most part, you can’t get a patent unless you are the inventor. Alternatively, you can arrange a contract for the inventor to assign their potential patent rights to you. Therefore, unless the multiple persons applying for a patent contributed in a material way to the invention, there is no point in them all making an application. For example, if you create an invention in your own time, your employer doesn’t automatically get an entitlement to a patent over it. You should get advice from an IP lawyer to understand these requirements in more detail.
PCT patent applications
It is important to also briefly consider PCT patents. You can’t obtain these through IP Australia. Rather, they are handled by the World Intellectual Property Organisation. A PCT patent application is essentially a way of filing one application for several countries at once. Under the treaty, it is possible for more than one person to apply for a patent as long as each applicant is a citizen of a country part of the treaty.
Conclusion
In conclusion, a patent grants an inventor exclusive rights over their inventions for a period of time. Individual inventors and company/organisation inventors can both make applications, either individually or jointly. Finally, it is possible for joint applications to be made for PCT patents as well.
