Patent basics

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.

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.

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 Australian address for legal service as well as an address for correspondence (which does not have to be in Australia).

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 you. You 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.

Last updated: 
30 May 2016