Search for a patent
Before you apply for a patent, it is important to conduct a comprehensive search for patent information. This step in the application process helps you to avoid wasting time and money by duplicating work that's already been done.
Searching patent information can help you to avoid wasting time and money duplicating work that's already been done.
Why should I search?
More than 40 million patent documents have been published, with almost a million new disclosures added each year.
Each patent document has a unique identifying number and includes a detailed description of an invention, usually with drawings, and information about the inventor and applicant.
Reasons to search
Performing a search prior to applying is vital as it helps you to:
- determine whether you can protect your IP i.e. does your invention meet the various requirements for successful grant of a patent?
- determine whether you are infringing someone else's IP
- learn about the competition or for research purposes
- determine who owns an item of IP
- check that your IP is not being infringed
- obtain product information on your competitors
Each of these reasons focuses on distinct legal questions. Often different databases and other relevant sources need to be searched thoroughly. This is because it is not possible to give a 100 per cent guarantee that your patent will not breach one previously granted. In other words you are limiting your results by relying solely on a single database search for a patent.
Obtaining competitive product information
All patents and some patent applications are published. A key purpose of the patent system is to publish knowledge and promote progress.
A patent is a contract with the government where the inventor agrees that details of the invention be published in exchange for a period of protection for the invention.
Australian and foreign patent databases include huge volumes of technical knowledge. Searching them and studying pending patent applications and granted patents can provide a lot of useful information about your competitors' products and future directions.
You can search patent databases to find:
- all patents owned by a competitor
- technical details of another system (if patented)
- all patents on a particular topic, product or technology
- details of technology that can possibly be licensed
A patent is both a technical and a legal document with information that allows a person who is skilled in the area to make and use the patented invention.
Using competitive product information
Competitive product information can be used in two ways:
- to design around a patent
- to get a step ahead of competitors
You are entitled to commercialise anything not covered by the patent's claims. You may discover a significant area or use for a product that is not in fact covered by your competitor's patent.
You may improve on the technology patented and patent your improvement. Your patent may then stop your competitor commercialising your improvement. It will also stop them making the technological improvement you have already patented.
Determining who owns a patent
The Australian Patents Register records patentees and should always be searched to determine who owns a patent. You can use AusPat to search the register.
Patents can be transferred by way of assignment and assignments can be recorded in the patents register.
Although the assignment is effective even if it is not recorded, the Patents Act 1990 provides protection for those who rely on the Patents Register to determine who owns a patent. Unregistered documents are not admissible in court proceedings except in certain circumstances.
Determining if a patent has been mortgaged
All security interests such as mortgages over a patent must be recorded by the secured party on the national Personal Property Security Register. The PPS Register can be searched to determine whether there is a mortgage over a patent. From 30 January 2012, our Register of Patents is no longer a legal securities register. Some mortgages may continue to be recorded on the Patents Register, however it is not a complete record. More information is available in the Official Notice.
If a company owns the patent, you should also search company charge information (fees apply) through the Australian Securities and Investments Commission to conduct a company search and determine whether the mortgage has been recorded on that register.
Determining whether a patent is valid
Just because a patent has been issued does not always mean it is valid. Relevant prior art may not have been uncovered when we conducted the examination of the patent application and if this prior art later comes to light, the patent can be invalidated.
If you are concerned about infringing another party's patent, conduct a prior art search to see if you can invalidate that patent. Remember the adage that it is never possible to prove a patent is valid, but it may be possible to prove it is invalid.
Australian patent information
Australian patent databases reflect only a small percentage (approximately 7 percent) of world patenting activity but they provide up-to-date information about Australian patents.
They can be a good place to start a search if you have limited resources. You might find a similar invention right away and avoid the time and cost of a wider search. Alternatively, it may help you decide on the technical areas in which to concentrate your search effort.
Patent information is classified by subject matter and can be searched worldwide using both commercial databases as well as a number of free patent databases.
Using these databases effectively is a specialised skill and can be time consuming and costly. For this reason you may want to contact an IP professional to carry out a search for you.
Get professional help to search
Search databases provide an important step in your patent application process. For any specific assistance or to seek advice you can contact an IP professional.
When engaging a professional searcher such as a patent attorney or search agent, it is important for you to understand the various search objectives and work out the type of search you will need. It can be economical to conduct a number of searches simultaneously.
Last Updated: 18/1/2016