Standard patent application process


A complete application for a standard patent is assessed against the same requirements as an innovation patent, except that your invention must comply with a higher inventive threshold.

Your invention will also be referenced against background knowledge in its technical field. This is sourced from common work practices as well as standard texts and handbooks, technical dictionaries and other material in the field.

To be eligible for patent protection your invention must:

  • be new ("novel') which means that the invention has not been publicly disclosed in any form, anywhere in the world
  • for a standard patent, involve an inventive step; this means that the invention must not be an obvious thing to do for someone with knowledge and experience in the technological field of the invention

The process of granting a standard patent usually takes up to 5 years.

Publication of details

We publish details of your unexamined standard patent application (level AU-A) in the Australian Official Journal of Patents about 18 months after your application's earliest priority date.

Published patent specifications are made available to the public through our website and are sent to certain libraries and overseas patent offices.

Publication is an important step for two reasons:

  • The contents of your standard patent application are no longer confidential. Your invention becomes part of the knowledge of the general public and may therefore subsequently assist in advancing industry and technology. For example, your invention may inspire others or be used to help solve other problems.
  • It sets the date after which someone using your invention without permission is unlawfully infringing your patent. That is, once you have a granted standard patent, you can take legal action for any infringements that occurred on and after the date we published your application

Please note: Publication of a patent does not guarantee that the patent is valid.

If your standard application is accepted, the patent is republished as an AU-B level publication. If your accepted standard application is subsequently amended, it is republished as an AU-C level publication.

Requesting examination of standard patent applications

After your standard patent application is submitted you must request examination within 5 years of the filing date. However, if you have not voluntarily requested examination, around 55 months from your earliest priority date you'll receive a notification directing you to request examination. You must request examination within 6 months of the date of this notification or your application will lapse.

You can request examination (either voluntarily or after being directed to do so) by completing and submitting a Request for Examination form and paying fee.

Once examination is requested you can normally expect a reply within about 12 months, depending on our workload.

After examination you'll be sent either an adverse report or a notice that your standard patent application has been accepted. If it's an adverse report, you'll be given the opportunity to make changes to your specification to correct the problems.

If all the problems that arise during examination cannot be overcome within 21 months from the date of the first report, your complete application will lapse.

Acceptance, opposition and grant of standard patent

Once all objections in the examiner's report are overcome, your application for a standard patent is accepted. Before the patent is granted, other parties ('opponents') have three months to start opposition proceedings.

The most common reasons for opposing the grant of a standard patent are:

  • the application is identical or very similar to another patent application
  • the patent applicant is not the true owner of the application.

The opponent must show that your standard patent, if granted, would be invalid.

When an opposition is filed, the patent applicant and the opponent each have an opportunity to submit evidence.

A hearing is then held before a Hearing Officer, who decides whether or not the opposition succeeds. If the opposition is successful, the patent applicant is usually given an opportunity to amend their patent specification to overcome the problems.

If either party disagrees with the Hearing Officer's decision, they can file an appeal with the Federal Court of Australia.

Less than two per cent of accepted standard applications are opposed, but if your application is opposed, you should consider consulting an IP professional.

If no opposition is filed and the acceptance fees are paid, your accepted standard application is sealed and your patent deed is sent to you.

What happens if I miss a deadline?

You may need to apply for an extension of time to restore a patent or patent application that has lapsed or ceased because you failed to pay a fee or take some other action in time.

For example, perhaps you have lost your priority rights because you did not file a complete application within 12 months of your provisional application.

To gain an extension of time you must explain in a declaration the chain of events that caused you to fail to take the action you should have done. You will need to pay any fees associated with your extension of time request and pay any unpaid fees (e.g. renewal fees). The outcome of this request will be assessed on a case by case basis. There is no guarantee that you will get the extension of time you requested.

Last Updated: 29/9/2011