Last updated: 
11 November 2020

A patent is a legally enforceable right for a device, substance, method or process. For your application to be successful, your invention must be new, useful and inventive or innovative.

When granted, a patent will give you exclusive commercial rights to your invention (a monopoly).

The type of patent you hold will determine the duration of your protection.

All Australian patent applications must be filed with us. We will assess your application to make sure it meets legislative requirements.

We recommend that you seek professional assistance before applying for a patent.

If you are a small and medium enterprise (SME) you can access our SME Case Management service if you do not yet have legal representation. This service connects you with a dedicated IP Australia subject matter expert who is your single point of contact to assist you at any stage of the patent application or examination process, including general information and search questions.

You can also take a look at our Patent application guide (PDF, 3.89 MB). This application guide is designed to help you prepare and file a patent application.

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.

If you want to discuss it with employees or business partners, have them sign a confidentiality agreement.

Benefits of patents

The protection provided by the Australian patent system contributes to the success of new inventions and the millions of dollars in earnings they generate.

A patent will:

  • give you the right to stop others from manufacturing, using and/or selling your invention in Australia without your permission
  • let you license someone else to manufacture your invention on agreed terms or take legal action against people who are using your invention without your permission
  • encourage Australians to continue their research, to develop new and innovative products, exploit new technology and promotes the transfer of technology to Australia
  • give our trading partners the incentive to provide similar rights and thereby protect our exports in markets overseas.

Deciding if a patent is the right choice

If you have developed a new device, substance, method or process you should decide whether patenting it should be part of your business strategy.

A patent may be the right choice for you if:

  • the potential for commercial returns outweighs the time, effort and money required to get and maintain a patent
  • the monopoly a patent offers would help lessen the risks of intellectual property (IP) theft in the markets you are interested in
  • you have the resources to manage your IP
  • a thorough search reveals no other similar technology
  • you own the invention and have kept it a secret.

Do your research and ensure you:

  • apply for the appropriate form of protection
  • have the necessary documentation for your patent application.

One option to consider when deciding if a patent is the right choice for you is a provisional application. Provisional applications are inexpensive and give you the earliest possible priority date. A priority date establishes the fact that you are the first person to file a new invention with us. While a provisional application doesn’t provide you with the protection of a full patent, it does give you up to 12 months to consider your options before deciding to proceed with a patent application.

If you are thinking about expanding your business overseas, you can also consider a Patent Cooperation Treaty (PCT) application for your invention. A PCT application will give you a quick indication of whether your invention can be patented. It also allows you to decide which countries you would like to have protection in.

Engaging an attorney

For first time applicants engaging an attorney can greatly increase the chances of success.

This toolkit is your step-by-step guide on how, why, what and when to engage your patent attorney. It explains the basics to get you started, and detail on how to engage an attorney for your project, so you feel confident in navigating your next steps. Read the Engaging an attorney toolkit.

Who can apply for a patent

A patent can be owned by:

  • the inventor(s)
  • the person who has legally obtained rights to the invention from the inventor(s) or an intermediary
  • a company, organisation or other employer of someone who made the invention in the course of their normal duties.

You must provide an address for legal service and this needs to be in Australia or New Zealand. Your address for correspondence can be anywhere in the world.

A firm or partnership is unable to obtain a patent. The partners in the firm or partnership can, however, obtain a patent jointly in their own names.

If you decide not to patent

Having considered all the issues, you may decide that patenting is not the best option for your particular circumstances. You may prefer to keep your invention as a trade secret. When making this decision, you should assess the risk of someone discovering your invention through industrial espionage or, if your invention is a product, by reverse engineering.

You also need to consider the consequences of someone else independently developing the same invention.

Another alternative is to openly use and publish details about your invention. Publicly disclosing an invention will prevent someone else obtaining a patent for it. However while no one would have a commercial monopoly on your invention, your competitors would be free to use it for their own benefit.