IP and Patent Advice
Do You Have a Question? We Have an Answer.
Why You Should Obtain a Patent
One of the most influential reasons to obtain a patent is to instill confidence in potential investors. More than a well thought out market strategy or designs, both crucial aspects to initially obtaining a patent, presenting your idea to future investors as uniquely yours can do wonders for inspiring others to come along for the journey.
Too many inexperienced entrepreneurs do not understand the significant legal fees that can be associated in obtaining a patent once a product is already in mass production, an issue which can easily scare off investors. So the effect of owning your own patent is two fold, both encouraging investors by creating a wall against competitors and reducing future costs and risks.
Benefits range from piece of mind to repelling competitors. When a product is patented, although this can be overcome through design changes, it allows you lead time on designing, production and marketing knowing that you have legal protection if another company attempts to compete with you.
You should weigh up if a patent is appropriate for your product and business. Patent or not, you should still move on your design and manufacturing swiftly- first to market wields a lot of benefit.
What is a Patent?
A patent is a legally enforceable right for a device, substance, method or process. For your application to be successful, your invention must be new, useful and inventive or innovative.
When granted, a patent will give you exclusive commercial rights to your invention.
The type of patent you hold will determine the duration of your protection.
A standard patent lasts for up to 20 years.
An innovation patent only lasts for up to eight years.
Pharmaceutical patents can last up to 25 years.
All Australian patent applications must be filed with IP Australia. Your application will be assessed to make sure it meets legislative requirements.
Benefits of a Patent
The protection provided by the Australian patent system contributes to the success of new inventions and the millions of dollars in earnings they generate.
A patent will:
give you the right to stop others from manufacturing, using and/or selling your invention in Australia without your permission.
let you license someone else to manufacture your invention on agreed terms or take legal action against people who are using your invention without your permission.
Deciding if a Patent is the Right Choice
If you have developed a new device, product, method or process you should decide whether patenting it should be part of your business strategy.
A patent may be the right choice for you if:
The potential for commercial returns outweighs the time, effort and money required to get and maintain a patent.
The monopoly a patent offers would help lessen the risks of intellectual property (IP) theft.
You have the resources to manage your IP.
A thorough search reveals no other similar product or technology.
You own the invention and have kept it a secret.
Do your research and ensure you:
Apply for the appropriate form of protection.
Have the necessary documentation for your patent application.
One option to consider when deciding if a patent is the right choice for you is a provisional application. Provisional applications are inexpensive and give you the earliest possible priority date. A priority date establishes the fact that you are the first person to file a new invention with IP Australia. While a provisional application doesn’t provide you with the protection of a full patent, it does give you up to 12 months to consider your options before deciding to proceed with a patent application.
If you are thinking about expanding your business overseas, you can also consider a Patent Cooperation Treaty (PCT) application for your invention. A PCT application will give you a quick indication of whether your invention can be patented. It also allows you to decide which countries you would like to be protected in.
The two types of patents granted in Australia are the standard patent and the innovation patent. You may also consider filing a provisional application or seeking international protection.
There are differences in the cost of the patents, the length of protection they offer, the time they take to process and the type of invention they seek to cover.
A standard patent gives you long-term protection and control over an invention. It lasts for up to 20 years from the filing date of your application (or up to 25 years for pharmaceutical substances).
The invention claimed in a standard patent must be new, involve an inventive step and be able to be made or used in an industry.
An inventive step means that the invention is not an obvious thing to do for someone with knowledge and experience in the technological field of the invention.
Your invention must differ in some way from existing technology. This difference must be something more than the simple application of published information or standard background knowledge.
Before a standard patent can be granted, the application will be examined to make sure it meets legislative requirements. Depending on the circumstances and the type of protection you are applying for, examination can take from six months up to several years.
If you want protection for an invention with a short market life that might be superseded by newer innovations, such as computer-based inventions, an innovation patent is worth considering.
An innovation patent lasts up to eight years and is designed to protect inventions that do not meet the inventive threshold required for standard patents. It is a relatively quick and inexpensive way to obtain protection for your new device, product, method or process.
The innovation patent requires an innovative step rather than an inventive step. An innovative step exists when the invention is different from what is known before and the difference makes a substantial contribution to the working of the invention.
The innovation patent protects an incremental advance on existing technology rather than being a groundbreaking invention. An innovation patent is usually granted within a month of filing the complete application. This is because there is no examination before it is granted.
An innovation patent is only legally enforceable if it meets the requirements of the Patents Act 1990, and has been certified.