Before introducing a new product or process to the market you should ask yourself two things:
- Can I protect my invention with a patent?
- Does my invention infringe someone else's patent?
When can I say patented?
For a standard patent application to be granted, which essentially means approved, the invention must be novel or inventive and it needs to be examined and then granted by our office before you can say it’s patented.
Saying your invention is patented, when it’s not granted can be misleading not to mention fraudulent advertising, as it can be a false or misleading claim.
According to section 178 of the Patent Act 1990 a person must not make false declarations about a patent and must not falsely represent that they are a patentee of an invention.
So what defines a patentee and an inventor?
A patentee by definition is the person that entered the Patents Registrar as grantee. In laymen terms this essentially means the person, aka the inventor, which has the patent granted to their name.
Now, it’s also important to note that the inventor must also be entitled to the invention which means they invented the product or they have permission from inventor.
Patented VS patent pending
If you’ve filed a complete patent application and it’s not yet granted, we suggest you instead use the phrase ‘patent pending’ to indicate you’ve filed an application.
Remember, you can always view status of invention in patent by searching AusPat, Australia’s patent database.
Searching can help answer these questions, as well as help you to identify who owns what IP so you don’t infringe someone else’s, obtain information on your competitors and check that your IP is not being infringed.
- If you have a device, substance, method or process that is new, inventive and useful you may benefit from a patent. Find out what patents are and what’s involved in the application process.
- Don’t go public too soon. Be aware that if you demonstrate, sell or discuss your invention in public before filing an application with us, you may not get a patent!
- To confirm that your invention is new, you should perform a patent search
- Businesses are not allowed to make statements that are incorrect or likely to create a false impression. Visit the Australian Competition and Consumer Commission (ACCC) website for the low down.
- Giving yourself a head start by understanding the basics of IP ownership and checking out our quick tips to avoid IP ownership disputes