Patents examined: the ins and outs of patents

Published: 
17 June 2015

patent is a type of intellectual property (IP) right. You can apply for patent to be granted for any device or machine, substance, process, technology or computer hardware and software, and even some business methods that you have invented.

For example, a Melbourne company patented their ergonomic office ‘Cpod’ chair. For the life of that patent, no other company is able to market a similar product.

You could consider a patent as a ‘barbed wire fence’ around your property. It’s not bullet proof and requires maintenance, but it does send a strong signal to potential trespassers.

Let’s get started…

Why would I need a patent?

You should consider patenting your invention if the possibility of commercial return outweighs the time, effort and money required to acquire and maintain the patent.

If you have a plan to commercialise your invention and will defend it from infringement, a patent can help mitigate the risks of IP theft in the markets you're interested in.

The date you first file a patent application for your invention will establish what is known as your priority date. This means that if any potential competitors who files an application at a later date for the same invention they will not be entitled to a patent.

What type of patent?

There are two types of patents in Australia:

  • an innovation patent is a quicker and less expensive way to protect an incremental advance on existing technology and lasts for a maximum of eight years
  • standard patent gives long-term protection and control over an invention and lasts up to 20 years (or up to 25 years for pharmaceutical substances).

This table provides a quick overview of the major differences between these two patent types:

 

 

Innovation Patent

Standard Patent

Your invention must

Be new, useful and involve an innovative step

Be new, useful and involve an inventive step

The application should include

A title, description, up to five claims, drawings (if applicable), an abstract and forms

A title, description, any number of claims, drawings (if applicable), an abstract and forms

A patent is granted if

The application satisfies requirements. This does not mean the innovation patent can be enforced.

The application is examined and found to satisfy the requirements of the Patents Act.

Examination

Is optional, and only after the patent is examined and certified can the patent be enforced.

Is mandatory before a patent is granted

 

What type of application?

There are three types of patent applications:

  • A provisional application is usually the first step and is filed by applicants who intend to file a complete application. It is the easiest way to get the earliest possible priority date and you have 12 months to file a complete application.
  • A complete application (filed as either a standard or innovation patent) is necessary to have a patent granted and allows you to take legal action if someone else infringes on your patent
  • An international application, also known as a Patent Co-operation Treaty (PCT) application, is a useful way to apply for patents in a number of different countries that you intend to export to.

How much does it cost?

Filing through eServices, our online services portal:

  • a provisional patent application fee costs approximately $120 (filed through online eServices) 
  • an innovation patent costs approximately $1600 including maintenance fees over eight years 
  • a standard patent costs approximately $11000 including maintenance fees over 8 years.

How long does it take?

An innovation patent will take one month to be granted, and six months if you request examination.

A standard patent can take six months up to several years depending on the circumstances.

How do I file?

Before you apply for a patent, it’s important to conduct a comprehensive search to make sure what you’re trying to patent hasn’t already been done.

To file your patent either file a provisional or standard or innovation patent application. The patent application process can be complex, so you may decide to use the services of a patent attorney.

Alternatively you can apply yourself online using eServices.

What do I need to know about opposition?

The most common reason for opposing the grant of a standard patent is if the invention claimed in the application is not new and/or inventive.

A notice of opposition to the grant of a standard patent application must be filed within three months of when we publish a notice that the patent has been accepted.

When an opposition is filed, both the patent applicant and the opponent will have the opportunity to provide evidence to the Commissioner of Patents.

Tips before applying

Don’t go public too soon!

If you show, sell or discuss your invention in public before you file, you may not get a patent. If you do need to discuss it with employees or business partners, you should consider having them sign a confidentiality agreement.

Once you have filed your patent application and receive a priority date, you can then demonstrate or sell your invention.

More information