The Patents Act 1990 (Cth) offers inventors two forms of patent protection for inventions: standard patents and innovation patents. Both standard and innovation patents provide owners with the exclusive right to exploit their invention and enforce this right. The patents however, are distinguishable by the duration of their process, protection term and eligibility requirements, notably the inventive and innovative steps.
Patent protection is an important and difficult process. It is imperative to know which patent is right for you. To help you decide which is the appropriate patent for your invention, LawPath recommends seeking advice from a patent attorney.
Standard patents are the most commonly used form of patent protection in Australia. A standard patent can protect and maximise the economic potential of your invention. They have been used to protect inventions across a range of industries such as manufacturing, construction and technology.
Under the Act, the patentability of an invention for a standard patent claim must be:
- Useful; and
- Involve an inventive step when compared to the prior art base.
The process of granting a standard patent can take up to 5 years, offering protection for a term of 20 years. This is a longer process than an innovation patent claim due to the substantive examination and opposition period. The pre-grant examination, however, does provide applicants assurance that their claim will be examined and rights enforceable once granted.
Innovation patents are a quicker and lower cost form of patent protection. Innovation patents are common with inventions that have a short commercial life, particularly in the technology sector. If your invention involves a modification on an existing technology within your industry, an innovation patent may be suitable.
A claim of patentability for an innovation patent requires the invention to be:
- Useful; and
- Involve an innovative step when compared to the prior art base.
The patent application process can take 1 month, with a protection term of 8 years. Unlike standard patents, innovation patents do not require a substantive examination and are granted after a formalities check. Seeking action against infringement and enforce your rights will require a substantive examination.
Inventive and Innovative
For standard patents an invention must involve an inventive step, the higher standard of patentability. The inventive step is the inventive process the inventor undertook when making the invention. An invention is presumed to have an inventive step unless the invention is obvious to a person skilled in the industry, in light of the information before the priority date.
This step is assessed based on what a non-inventive hypothetical person would have done in the particular circumstance. If it is known or used by those in the relevant industry, such as a common practice, it will be obvious and not a patentable invention.
If the patent will not qualify as inventive, it may still qualify as an innovative patent.
The innovative step is an easier step to satisfy than the inventive. An innovative step requires the invention to have at least one difference from the prior art, and this must be a difference that substantially contributes to how the invention works. The difference can be any modification to another invention and unlike standard patents, can be obvious. This includes any improvements or upgrades made on an existing invention.
This step is assessed based on whether a skilled person in the industry would find that the current invention makes a substantial contribution, improving an invention over previous models. The finding of a substantial contribution will result in an innovative step.
A patent application is a difficult process and it is important to know whether a standard or innovation patent is appropriate for you. To commercially enhance the value of your product and avoid unnecessary costs you should seek advice from a patent attorney.
LawPath has access to highly qualified patent attorneys that can help you select the appropriate patent for you. Contact a LawPath consultant on 1800LAWPATH to learn more about customising legal documents, obtaining a fixed-fee quote from our network of 600+ expert lawyers or any other legal needs.