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What is a Patent and How Do I File One?

What is a Patent and How Do I File One?

Written by

Raja Abbas

Ever had a brilliant idea that you think could change the world (or at least make your life a whole lot easier)? Well, you’re not alone! In a world brimming with innovation and creativity, it’s no surprise that people just like you come up with groundbreaking inventions every day. 

But here’s the catch – how do you protect that stroke of genius from being swiped by someone else?

Enter the world of patents. 

You’ve probably heard the term before, but what exactly is a patent, and how do you go about filing one? Whether you’re a budding inventor, a small business owner looking to safeguard your creations, or just plain curious about the ins and outs of the patent process, in this post, we’ll discuss the various types you can file and walk you through the steps of making your genius ideas legally protected.

Read along! 

Table of Contents

What is a patent?

A patent is a registered right granted by the law for a device, substance, method, or process that is new, inventive, and useful. As the owner, you have exclusive rights to commercially exploit the invention for the time granted by the patent. 

Essentially, only you can earn money from the invention. Below are some key pointers related to patents: 

  • Patents are a form of Intellectual Property protection.
  • They grant applicants the exclusive commercial right to a device, substance, method, or process.
  • A patented invention must be new, inventive, and useful.
  • Patents usually last 20 years, but pharmaceutical patents can last 25 years.
  • The Australian Government began the process of phasing out the innovation patent in 2020, and the last day for filing was 25 August 2021

Why should you apply for a patent?

Filing a patent in Australia has various benefits ranging from legal protection to financial opportunities and global market reach.

Below are a few ways in which you can leverage your innovation. 

  • Exclusive rights: Upon securing a patent in Australia, you gain exclusive rights over your invention. This means that no other entity can manufacture, use, or sell your creation without obtaining your explicit permission. A noteworthy example is Australia’s Wi-Fi patent, which has led to substantial royalty earnings.
  • Monopoly power: A patent grants you significant leverage in the marketplace. You possess the authority to establish terms and conditions for others interested in utilising or licensing your invention. Consider how companies like Apple strategically license their technology to third-party manufacturers, shaping the earbud market, for instance.
  • Market advantage: Displaying “Patent Pending” on your product signals to consumers that it possesses unique attributes, setting it apart from competitors. This distinctiveness can enhance the appeal of your product and elevate its standing in the market.
  • Profit potential: Patents can serve as valuable assets, capable of generating income through sales or licensing agreements. For instance, inventors can profitably sell their patented innovations to businesses eager to integrate these solutions into their portfolios.
  • Innovation incentive: Patents serve as incentives for innovation. Governments recognise and reward inventors, thereby fostering an environment conducive to creative endeavours. A notable instance is Australia’s contribution to the development of Google Maps, fortified by a range of Australian patents.
  • Legal protections: In the event of unauthorised replication of your invention, a patent provides the legal authority needed to thwart infringement attempts. This safeguard mechanism is particularly crucial for industries like Australian wineries, which vigorously protect their proprietary winemaking techniques.
  • Global reach: An Australian patent extends beyond national borders, thanks to international treaties and agreements. This global protection ensures your invention remains safeguarded in international markets. The bionic ear, a product stemming from Australian innovation, serves as a testament to the worldwide reach facilitated by patents.

What are the types of patents?

The two most common types of patents are the standard patents and the innovation patents.

To qualify for a standard patent, the invention has to be new (novel), useful, and involve an inventive step. Examination for approval by IP Australia for a standard patent takes on average 6 months and can go on for years, but affords the owner up to 20 years of exclusive use of the invention.

The requirement for an innovation patent is that the invention is new, useful, and involves an innovative step, which is a lower burden than ‘inventive’ for a standard patent. It takes around 1 month to obtain an innovation patent as it is only examined as and when there is a need to (e.g., when the owner seeks to enforce against an infringement). 

While it is quicker, cheaper, and easier to get an innovative patent, it is relatively less valuable and provides lesser protection than a standard patent. As mentioned earlier, innovation patents are being phased out. 

Find out more about the difference between standard and innovation patents in our guide.

How to Register a Patent

Step 1. Conduct a search

Before applying for a patent you must not demonstrate, sell or discuss your invention in public otherwise you may lose the opportunity to patent it. Ensure you search patent databases and look for similar products or inventions which are already patented.

What you are trying to patent must be new, a patentable subject matter and not be obvious. It is important that you obtain a priority date, this refers to the date you first file a patent application and ensures that potential competitors who file for a patent after you will not be entitled to patent it.

Step 2. Choose an application

There are different types of patents which vary in cost, type of protection they offer and how long they take to process.

  • Australian Provisional Application: Lasts 1 year and provides the opportunity for further developments but does not provide patent protection itself. These are useful in highly competitive industries to obtain early priority dates.
  • Australian Standard Patent Application: Last up to 20 years.
  • Australian Innovation Patent Application: Lasts up to 8 years.
  • Patent Cooperation Treaty Application: Lasts 1.5-2.5 years and covers about 50 countries making them attractive to investors and those wishing to protect important export markets.

For more information about the difference between standard and innovation patents check out our previous legal guide.

Step 3. File a complete application

A complete application refers to a standard or innovation patent application. You can apply online via IP Australia or mail an application. Applications should include a patent request form, a complete specification of what you wish to patent, and the filing fee.

A complete specification includes a Title, Description, Claims, Abstract, and in some cases, illustrations. Having a patent attorney to assist in writing a complete specification is important because, if granted this is all the necessary information your patent will be based on.

Step 4.Processing the application

Once you have filed your complete application, there are some formalities which will be conducted by the Patent Office (PO). For standard patents, you must request an examination. If you don’t, within two months, the application will lapse. For innovation patent examination is optional. 

The PO will perform a preliminary check which includes publication and a period of public inspection. Once examined the PO will either send an adverse report or notice that your application has been accepted. You will have the opportunity to respond to an adverse report and make changes to your specification.

Applications will be rejected if it does not meet the requirements of the Patents Act. A patent will be rejected if the product is not new, useful, inventive/innovative and has already been secretly used.

If applications are accepted, opposing parties will have 3 months to start proceedings if they believe your patent should be invalid. The application process for standard patents takes from six months to several years depending on circumstances. For innovation patents the process usually takes 1-6 months. Once your patent is in force you are required to pay annual maintenance fees and are responsible to enforce your legal rights.

Final Step. Registered Patent = Protected Patent

With a registered patent you have the protection and a legally enforceable right against others who may want to capitalise on your ideas or invention. A patent also provides you the ability to commercialise your inventions, expand your business and gain a competitive advantage in the market.

FAQs

How long does a patent last?

The protection time frame varies depending on the type of patent. An Australian standard patent lasts up to 20 years, an innovation patent lasts up to 8 years, and a pharmaceutical patent lasts up to 25 years.

Where do I start?

1. Ask if your idea is worthwhile

Protecting your invention this way is a long process and often quite costly. When considering if you should patent your idea, you should first consider if your idea is commercially viable. Essentially, you would want to protect an idea that will make you money.

2. Is the idea commercially viable?

There are two general ways to determine your commercial viability. First, think about the marketability and saleability of your idea (e.g., the iPod). Second, consider whether other corporations will seek a licence for your IP in exchange for royalties.

3. Have you told anyone about it?

Your application could be unsuccessful if you have told someone about it or used it publicly before filing a patent application. If you have not yet told anyone, don’t do so until you’ve filed your application.

New ideas or inventions are a commercially valuable commodity which requires protection. Acquiring a patent can be a costly, time-consuming, and difficult process if you aren’t sure what is required. Seeking professional advice from a patent attorney can help ensure that your application has a better chance for success and commercially enhance the value of your product.

Conclusion

In the ever-evolving landscape of innovation, patents remain a cornerstone of progress and protection. So, if you’ve been sitting on that revolutionary idea, it’s time to take action. Consult with legal experts, conduct thorough research, and embark on the patent filing process with confidence. 

Lawpath has access to highly qualified IP attorneys who can help you apply for a patent. 

Find the perfect lawyer to help your business today!

Get a fixed-fee quote from Australia's largest lawyer marketplace.

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