What is a Patent? (2021 Update)
A patent is a form of legal protection which grants you exclusive commercial rights to your invention. Find out more here.
- 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 for 20 years, but pharmaceutical patents can last for 25 years.
- Innovation patents (which last for 8 years) are in the process of being phased out.
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.
Why should I apply for one?
Patenting gives you exclusive rights to generate income from your invention, allowing you to stop others from manufacturing, using or selling your invention. If you would like to, you are able to license the invention to other parties. Patenting supports innovation in promoting the development of new products and technology by providing the incentive of holding exclusive commercial rights to these products.
Did you know that WiFi is an Australian invention? The Commonwealth Scientific and Industrial Research Organisation (CSIRO) patented it in 1992 and 1996, and to 2013, earned over $430 million in royalties.
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 take on average 6 months and can go on for years, but affords the owner up to 20 years exclusive use of the invention.
The requirements for an innovation patent are the invention is new, useful and involve 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. You will not be able to apply for an Innovation Patent past 25 August 2021.
How long does it last?
The protection time frame varies depending on the type of patent. An Australian standard patent lasts for up to 20 years, an innovation patent lasts for up to 8 years, and a pharmaceutical patent can last for 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 to 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.
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.