Introduction
Understanding whether you can patent an idea is really helpful if you don’t have the resources to develop it further. We are going to explain whether or not you can patent an idea in Australia by going through a few things. First, we’ll provide a brief overview of patents. Then, we’ll consider the specific ‘manner of manufacture’ and utility requirements, and whether ideas satisfy them. Finally, we’ll sum it all up for you at the end.
Overview of patents
Put simply, a patent is a bundle of exclusive rights over inventions for a definite period of time. The rights include things like making the invention, selling it, or using it. We’ll take a look at the basics for applying and granting patents and how they can affect patents for ideas.
Applying for patents
There are different types of patents you can apply for. The two main ones are standard patents and innovation patents. We’re going to focus on standard patents in this guide as Australia is moving to phase out innovation patents. Any person can apply for a standard patent, either by themselves or with others. Even companies or other organisations may be able to apply for patents. Additionally, there is no requirement for you to be Australian to get a patent. Therefore, there aren’t really many barriers to you applying for a patent over an idea.
Granting patents
Patents can only be granted for inventions which are ‘manners of manufacture’, novel, inventive, useful, and have not been secretly used before. These have complex legal meanings on top of their ordinary definitions. At the least, neither the legislation nor courts have set definite boundaries on the types of inventions which will satisfy these requirements. Therefore, in theory, you can patent an idea as long as you can show all these things. However, you may have difficulty in meeting two requirements particularly: ‘manner of manufacture’ and utility.
Are ideas ‘manners of manufacture’?
‘Manners of manufacture’ are the kinds of inventions which are inherently patentable. Of course you still have to satisfy the other requirements to actually get the patent. However, the ‘manner of manufacture’ requirement imagines that even if some inventions do satisfy all other requirements, they may be inherently ineligible for a patent. To help you understand this, we’ll look at common categories of inventions you can patent, as well as specifically prohibited categories which you can’t.
Common categories of inventions
There is no general rule saying all ideas are patentable. However, quite a lot of inventions have been patented since the inception of the patent system. As such, there are common trends in the types of inventions which have been considered as patentable. The Patent Examiner’s Manual sets quite a few of these out. They include vendible goods, pharmaceuticals, and agricultural and horticultural processes. Importantly, you don’t have to actually make these inventions to patent them. Therefore, if you have an idea for one of these categories of inventions, it may be patentable. Remember however that there are no set limits on the kinds of inventions which can be patented. Therefore, even if you don’t fit in one of these existing categories, it doesn’t necessarily mean you can’t get a patent. We recommend speaking with a patent lawyer to help you understand this requirement in more detail.
Unacceptable types of inventions
Additionally, there are certain types of inventions you can’t patent. For example, s 18(2) of the Patents Act 1990 (Cth) says ‘biological processes for human generation’ aren’t ‘patentable’. Additionally, s 50 of the Patents Act 1990 (Cth) says patents ‘may be refused’ for inventions ‘contrary to law’. Additionally, the Patent Examiner’s Manual says you can’t patent something you merely discover (because if it already existed, then it isn’t an invention). Therefore, if you have an idea for one of these prohibited categories, you may not get a patent no matter how ingenious it is.
Are ideas useful inventions?
Whether or not an idea is useful depends on the idea itself. There is no general rule covering them all. At the least however, applications for patents must specify a specific, substantial, and credible use for an invention. The Patent Examiner’s Manual helps define what these terms mean. A specific use provides, at the least, a ‘well-defined benefit to the public’. A substantial use has, at the least, ‘an immediately available, significant real-world use’. Finally, a credible use is, at the least, plausibly achievable. Therefore, to patent an idea, it needs to have a use which can be defined in all of these ways. It can’t be a mere idea you think of, but suggest no way of implementing it. To help you figure out your use, again we suggest speaking with a patent lawyer.
Conclusion
In conclusion, a patent is a bundle of exclusive rights over new inventions. You can get patents over ideas for one of the existing categories of inventions. Additionally, you can get patents over ideas with specific, substantial, and credible uses. However, there aren’t any hard definitions of the kinds of inventions you can patent. Therefore, even if you don’t fit any of the above requirements, don’t lose all hope. Chat to a patent lawyer to figure out your options.
