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How to File a Patent?

How to File a Patent?

Want to protect your inventions? Learn how to file for a patent.

17th October 2017

New ideas or inventions are a commercially valuable commodity which require 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.

What is a Patent?

A patent is an intellectual property right for any new, inventive and useful device, substance, method, process or technology. A patent is a legally enforceable right for the inventor to commercially exploit the invention for the life of the patent and thus excluding others from making, using, selling, offering for sale or importing the patented invention for the term of the patent. Patents are a useful tool to promote the development of ideas and provides reward to the inventors.

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 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 examination. If you don’t within two months the application will lapse. For innovation patents 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.

LawPath has access to highly qualified IP attorneys that can help with you applying for a patent. Contact a LawPath consultant on 1800 529 728 to learn more about customising legal documents, obtaining a fixed-fee quote from our network of 750+ expert lawyers or to get answers to your legal questions.

Jessica Coventry

Jessica is a Paralegal, working in our content team, which aims to provide free legal guides to facilitate public access to legal resources. With a keen interest in media and IP law, her research focuses on the evolving role of the law to navigate new and emerging information platforms.