Feedback
Patents
Patent law in Australia, which is administered by the Australian Government, provides protection for an invention with commercialisation prospects. A registered patent gives the owner a monopoly to exploit the invention commercially for the life of the patent, including the right to license others to make, sell or use the invention. The owner of a registered patent can also exclude others from making, using or selling their invention.
Inventors need to lodge a formal patent application for consideration for patent protection, which is not granted automatically. They should seek professional advice, and keep the invention secret until the patent is registered, as disclosure to anyone outside a confidential setting may invalidate the patent.
This guide explains what patents are, how to apply for them, what they protect, and approaches to take other than, or as well as, applying for a patent.
What is a patent
Patents are used to protect the way things work. A patent is a right granted for an invention that is new and useful. A registered patent provides the owner of the invention with the exclusive right to exploit it commercially for the life of the patent. The owner also has the right to license others to make, use or sell the invention or products made using the invention.
Unlike copyright, patent protection is not granted automatically. A formal patent application must be lodged, and it is essential that the invention is not disclosed beforehand.
Patent administration in Australia
In Australia, patents are administered by IP Australia, an Australian Government organisation. Other countries have their own government offices that administer patents.
If you wish to patent an invention in multiple countries, it is necessary to file and process your application in each country. There are processes (such as those under the Patent Cooperation Treaty or the Paris Convention for the Protection of Industrial Property) that simplify some aspects of the filing process. However, you must seek professional advice, as each country has different rules. If you proceed without professional advice you may invalidate your patent in one or more other countries.
Protection offered by patents
Patents give effective protection if you have invented a new product, composition or process with prospects for significant long-term commercial gain.
A patent allows you to control the sale or use of the invention. Even if a competitor improves the invention, they may still be required to license or purchase your original patent before they can exploit the improvement.
A patent encourages the undertaking of further research, testing, effort and expenditure to develop a new product, method or process.
A patent offers you a monopoly for the duration of your patent registration. After the period of protection expires, the invention can be made, used or sold for a profit by anyone.
In return for the monopoly, you must share your know-how with the world by making a full description of how your invention works publicly available. This information provides the basis for further research and subsequent invention by others.
The Patents Act 1990 (Cwlth) (section 119C) provides that certain experimental activities, as distinct from commercialisation activities, do not infringe a patent.
What is an invention?
An invention may be a device, substance, method or process. It can include some types of computer programs and business systems.
For an invention to qualify for a patent it must be:
- useful (utility) – it must fulfil the promises described in the application
- new – it must be different from anything done before
- non-obvious – the differences must involve an 'inventive step' (standard patent) or an 'innovative step' (innovation patent) over what has been done before
- a manner of manufacture – this includes a device, substance, method or process, but excludes purely mental processes, such as artistic creations, mathematical models, theories and ideas
- within the classes described by patent law. There are some inventions that cannot be patented because of their subject matter. This is usually because of a country's policy. Some inventions would be 'contrary to law' (e.g. an exploding safe designed to injure a thief). Other exclusions include the fine arts, and discoveries, theorems or formulae that do not have a practical application. If the invention is unpatentable, it does not matter how useful, new or inventive it is.
The invention need not be complex. Some well-known, relatively simple Australian inventions that have been patented are:
- The Hills Hoist – clothesline (1956)
- Dynamic Lifter – fertiliser (1986)
- Shepherd castors – furniture castors (1947)
- Victa lawn mower – 2-stroke petrol lawn mower (1955).
Also consider...
- Visit IP Australia for information about patents. Topics include: about the application process; how to search for a patent; how to apply for a patent; and how to renew your patent.
- Visit the Institute of Patent and Trade Mark Attorneys of Australia—a representative body for Australian patent and trademark attorneys. This site provides the latest news and resource information about patent and trademark law in Australia.
- Use the directory of registered attorneys published by the Trans-Tasman IP Attorneys Board—a group that administers the patent attorney professions in Australia and New Zealand and the trademarks profession in Australia.
Protecting your invention
It is vital that, before you apply for patent protection, you keep any information about the invention confidential. You must not demonstrate, commercially exploit or sell the invention. You also must not discuss your invention with any external person/organisation before you apply for a patent, otherwise you may lose the opportunity to patent it.
In some instances, disclosure in research settings may be allowed if the disclosure is made during a grace period. Visit IP Australia for more information about patents.
You can talk to others about the invention, but you must make it clear that the information is to be kept confidential. If you have any dealings about the invention with external people/organisations, you should use a confidentiality agreement.
Also consider...
- Visit IP Australia for information about patents. Topics include: about the application process; how to search for a patent; how to apply for a patent; and how to renew your patent.
- Visit the Institute of Patent and Trade Mark Attorneys of Australia—a representative body for Australian patent and trademark attorneys. This site provides the latest news and resource information about patent and trademark law in Australia.
- Use the directory of registered attorneys published by the Trans-Tasman IP Attorneys Board—a group that administers the patent attorney professions in Australia and New Zealand and the trademarks profession in Australia.
Types of patents
Standard patent
You can protect your device, substance, method or process using a standard patent. A standard patent provides long-term protection and control over an invention, lasting up to 20 years. A pharmaceutical patent is a particular kind of standard patent that can last up to 25 years, in certain circumstances.
You can no longer apply for an innovation patent, which was a quick and inexpensive protection option, lasting a maximum of 8 years.
Patent protection is reliant on the payment of fees during the life of the patent. If a required fee is not paid the patent will be in a 'state of lapse' and unless the fee is paid within a set time, the patent will lapse permanently. Once the patent lapses you cannot enforce your rights and others may benefit from your hard work.
Innovation patents filed on or before 25 August 2021 remain in force until they expire.
Pharmaceutical patent
A pharmaceutical patent is a standard patent that can give protection for up to 25 years for pharmaceutical substances. The Australian Patent Office allows for an extension of up to 5 years beyond the standard 20-year patent term for certain pharmaceutical patents. A pharmaceutical patent protects the IP rights of both the creators and owners, and provides time for innovators to secure the heavy research and development investment required in the chemical, medical and health fields.
This extension of the patent term for pharmaceuticals is to compensate pharmaceutical companies who would otherwise be unable to take full advantage of the 20-year term of their patents, due to a delay in obtaining regulatory approval for new products. Strict eligibility requirements apply and only some pharmaceutical products qualify. By allowing a full 'actual' patent term, costly investment into the research areas of medicine, chemistry and biotechnology is more achievable. This investment further allows others to extend upon what is currently known.
What can't be patented
You cannot patent abstract ideas, artistic creations, mathematical models, plans, schemes or other purely mental processes. For example, it would not have been possible to patent Einstein's theory of relativity depicted by the formula 'E=mc2'. This formula is an idea or theory of nature and not a specific device or process.
Laws of nature, such as Newton's law of gravity, are also unpatentable. However, inventions that apply these theories are patentable. Discoveries such as naturally existing chemical compounds are not patentable, but a new method of using the compound might be.
Other subject matter that cannot be patented includes inventions that would be 'contrary to law' (such as a new process to print counterfeit money) and foods or medicines that are merely mixtures of individual ingredients without any particular interaction (such as a new cake or scone recipe).
After a patent has been granted, it may, during its term, still be subject to legal challenges to its validity. You should seek professional advice where any legal challenge is made.
Also consider...
- Visit IP Australia for information about patents. Topics include: about the application process; how to search for a patent; how to apply for a patent; and how to renew your patent.
- Visit the Institute of Patent and Trade Mark Attorneys of Australia—a representative body for Australian patent and trademark attorneys. This site provides the latest news and resource information about patent and trademark law in Australia.
- Use the directory of registered attorneys published by the Trans-Tasman IP Attorneys Board—a group that administers the patent attorney professions in Australia and New Zealand and the trademarks profession in Australia.
Applying for a patent
Before you apply for a patent, you need to keep a written record of your invention, to help to prove you are the inventor (laboratory notebooks, manuals, prototypes etc.).
You must keep the invention secret before you apply for a patent. Disclosure to anyone, anywhere, anyhow without the use of a confidentiality agreement will invalidate the patent.
Seek professional advice before making your application.
As with other forms of IP, if the invention has resulted as part of an employee's official duties, then the patent can be owned by the employer.
The patent application process
The patent application process can be very complex.
A lack of knowledge and experience in this area can result in a failed, inappropriate or unenforceable application, or a registered patent that does not adequately protect your whole innovation or its commercial aspects. A qualified patent attorney should be consulted to help navigate any potential problems.
The process of filing a patent application is also demanding, with milestones for lodging the completed application and undergoing examination procedures within strict time frames. A qualified professional has systems in place to make sure these milestones are completed at the appropriate time.
Patent applications are examined by IP Australia and, if accepted, are published. Others then have a limited time (3 months) to oppose the patent.
Read an overview of the typical patent application process in Australia from IP Australia.
Patent application costs
Fees are payable at different stages through the patent process and will vary depending on how you apply for the payment and your chosen payment method.
Costs that you may incur include: application, examination and acceptance fees, annual renewal fees, and international fees. Separate costs may be incurred if parties are involved in patent oppositions and/or ownership disputes.
You may incur additional costs if you are using legal representation.
Visit IP Australia for a full list of statutory fees and methods of payment for Australian patents.
Also consider...
- Visit IP Australia for information about patents. Topics include: about the application process; how to search for a patent; how to apply for a patent; and how to renew your patent.
- Visit the Institute of Patent and Trade Mark Attorneys of Australia—a representative body for Australian patent and trademark attorneys. This site provides the latest news and resource information about patent and trademark law in Australia.
- Use the directory of registered attorneys published by the Trans-Tasman IP Attorneys Board—a group that administers the patent attorney professions in Australia and New Zealand and the trademarks profession in Australia.
Alternatives to patents
Forms of protection under Australian law to consider as possible alternatives or additions to patents include:
- trademarks for a word or symbol that distinguishes your product or service
- designs for features of your innovation having visual appeal
- plant breeder's rights for new plant varieties
- confidentiality agreements.
Other approaches to commercialising your invention
After having considered all the options and issues, including conducting a cost-benefit analysis, you may decide not to patent your invention or apply related forms of protection such as registering a design, but explore other approaches including:
Option 1 – Trade secrets
One alternative to applying for a patent for your invention is to maintain the invention as a trade secret. If you decide to protect the invention as a trade secret there is no legal protection against someone 'reverse engineering' it to discover the trade secret. They would then be free to exploit the invention and sell it under their own brand.
Option 2 – Freely available
Another alternative to patent protection is to make details about your innovation freely available, or 'open source'. This stops someone else obtaining a patent for the same thing, but allows your competitors to freely use the invention for their own benefit. This is a useful alternative if you work in a rapidly advancing field and the time and cost involved in patenting the invention mean patenting is not commercially viable. Openly using and/or publishing details of the invention stops someone else from patenting the invention (which may prevent you from using it) and can protect your established reputation or existing trading partners.
Option 3 – 'First to market' advantage
Keeping a new invention secret while preparing to go to market, and using it to develop new products can give you a market advantage. You gain the opportunity to develop manufacturing facilities, distribution channels and branding so that when the product is launched, you are ahead of your competitors. In the meantime, your business may have reaped most of the available profits (by saturating the market) or established a brand reputation (preferably protected by trademark registration) that will give you a significant advantage over newcomers to the market.
Also consider...
- Visit IP Australia for information about patents. Topics include: about the application process; how to search for a patent; how to apply for a patent; and how to renew your patent.
- Visit the Institute of Patent and Trade Mark Attorneys of Australia—a representative body for Australian patent and trademark attorneys. This site provides the latest news and resource information about patent and trademark law in Australia.
- Use the directory of registered attorneys published by the Trans-Tasman IP Attorneys Board—a group that administers the patent attorney professions in Australia and New Zealand and the trademarks profession in Australia.
© The State of Queensland 1995–2024
- Last reviewed: 08 Sep 2021
- Last updated: 08 Sep 2021