The Patent Application Process (2021 Update)
Have a game-changing product or idea and want to apply for a patent? Read this guide to find out the process you need to follow.
A patent is a form of legal protection which grants you exclusive commercial rights to a product or invention. Patents usually last for twenty years. During this time, no one else will be able to benefit commercially from your product. In this article, we’ll explain all aspects of the patent application process and how you can apply.
Patent application process
1. Provisional patent stage
You will need to file your patent in each individual country you wish to enforce your rights in. There is no international patent coverage through one application. Filing an international patent application under PCT (Patent Cooperation Treaty), however, simultaneously seeks patent protection in the 148 participating countries. That being said, there is a single international patent application that reserves your rights internationally during an international patent pending period (usually a 12 month period). This gives you time to commercialise your idea – bring it out to the market, license it to other corporations or otherwise, while enjoying patent protection.
To do so, you must file a provisional patent application for you to obtain an international filing date. This will mark the start of your international patent pending period. During this time, the information in your patent is not publicly available, meaning you can advance your invention in relative secrecy from your competitors. *evil laugh*
2. Commercialise your idea
Once you filed your provisional patent application, you can go straight into commercialising your idea. Commercialising your idea gives you a good and informed idea of which countries you would seek patent approvals in, or whether to continue with the whole patent process altogether. At the same time, you can determine the commercial viability of your idea, and the potential success of your invention.
3. Conduct prior art search (at the same time)
When you have submitted your application, you can start searching for similar ideas to determine which parts of your idea is new. Doing a search at this stage is ideal; you file your provisional patent application as early as possible, giving you maximum protection, and your idea usually only has to have one point of distinction from existing ideas to be approved for a patent.
The best search to conduct is an international type search, similar to that in the next stage. It gives you a general idea of what information you need to file the PCT patent application.
4. PCT Patent Application (around 12 months from initial filing)
As the provisional patent pending period comes to a close, you should be in the final stages of determining the feasibility of applying for a patent, and the commercial viability of your idea.
By filing a PCT patent application, you will have a further 18 months international patent pending before you have to choose the countries you are seeking enforcement in. Examination of your application is centralised, and the examiner will include any issues that she/he finds in your application. If your application passes the overall examination, the countries that you select will accept your application in turn. If on examination, your application is rejected, you can dispute the findings and request a further optional examination to put your concerns or arguments to the examiner.
5. National phase (around 30 – 31 months from initial filing)
After your application passes the international phase of examination, the national phase is next. By this time, you will have a really good idea of what countries you want to seek patent protection in, and would have chosen the respective countries. This stage is usually passed without much turbulence.
Dominic is the CEO of Lawpath, dedicating his days to making legal easier, faster and more accessible to businesses. Dominic is a recognised thought-leader in Australian legal disruption, and was recognised as a winner of the 2015 Australian Legal Innovation Index.