Types of patents

The two types of patents granted in Australia are the standard patent and the innovation patent.

You may also consider filing a provisional application or seeking international protection.

There are differences in the cost of the patents, the length of protection they offer, the time they take to process and the type of invention they seek to cover.

Standard patent

A standard patent gives you long-term protection and control over an invention. It lasts for up to 20 years from the filing date of your application (or up to 25 years for pharmaceutical substances).

The invention claimed in a standard patent must be new, involve an inventive step and be able to be made or used in an industry.

An inventive step means that the invention is not an obvious thing to do for someone with knowledge and experience in the technological field of the invention.

Your invention must differ in some way from existing technology. This difference must be something more than the simple application of published information or standard background knowledge.

Before a standard patent can be granted, the application will be examined by us to make sure it meets legislative requirements. Depending on the circumstances and the type of protection you are applying for, examination can take from six months up to several years.

Innovation patent

If you want protection for an invention with a short market life that might be superseded by newer innovations, such as computer-based inventions, an innovation patent is worth considering.

An innovation patent lasts up to eight years and is designed to protect inventions that do not meet the inventive threshold required for standard patents. It is a relatively quick and inexpensive way to obtain protection for your new device, substance, method or process.

The innovation patent requires an innovative step rather than an inventive step. An innovative step exists when the invention is different from what is known before and the difference makes a substantial contribution to the working of the invention. The innovation patent protects an incremental advance on existing technology rather than being a groundbreaking invention.

An innovation patent is usually granted within a month of filing the complete application. This is because there is no examination before it is granted.

An innovation patent is only legally enforceable if it has been examined by us and found to meet the requirements of the Patents Act 1990, and has been certified. Examination of an innovation patent will only occur if requested by the patentee, a third party or if the Commissioner of Patents decides to examine the patent. The patentee will not be required to pay for examination until it is requested.

Quick guide to innovation versus standard patents


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 formality requirements (note: a 'granted' innovation patent cannot be enforced unless examined).

The application is examined and found to satisfy the relevant requirements of the Patents Act 1990.


Optional. Examination can be requested by you or anyone else.

Mandatory. The relevant requirements of the Patents Act 1990 must be met before a patent is granted. Can only be requested by the applicant.


Is given if the innovation patent complies with the relevant requirements of the Patents Act 1990 in examination. Only after certification can the patent be enforced.


Publication in the Australian Official Journal of Patents:

At grant and again at certification.

18 months from earliest priority date and again at acceptance.

Protection period:

Up to eight years if annual fees are paid.

Up to 20 years if annual fees are paid (or up to 25 years for pharmaceuticals).

How long does the process take?

Approximately one month for grant. Six months for examination if you make a request.

Six months to several years depending on circumstances.

Can an innovation patent be converted to a standard patent?

You can convert an innovation patent to a standard patent application in the period before it is accepted, but you have to be quick. That's because an innovation patent is accepted after a brief formalities check, which is usually within one month. 

Provisional applications

Before applying for any patent, you may wish to file a provisional application. Provisional applications establish a priority date, which is handy if you need to prove you were the first to come up with a new invention

Think of a provisional application as a placeholder. It is an inexpensive way of signalling your intention to file full patent application later on. However, filing a provisional application on its own does not give you patent protection.

In order to claim the priority date of your provisional application, you must apply for a patent (standard or innovation) or file a PCT application within 12 months of filing your provisional application.

As a general rule, the priority date for your invention is the date on which you first filed a patent application that described your invention in detail. To get the earliest possible priority date on your invention, you can file a provisional application. Establishing a priority date is useful in helping you to get the jump on competitors.

A provisional application also gives you time to determine whether your invention is worthy of further time, money and effort associated with filing an application for a patent. It is also cheaper to file a provisional application than an application for a standard or innovation patent.

If you do decide to apply for a standard or innovation patent, you can use the priority date from your provisional application. This can be particularly useful if there is a dispute over who came up with an idea first.

For example, a competitor may claim they came up with an idea in July 2015, and accuse you of copying their idea as you didn’t file for a patent until January 2016.

However, you actually submitted a provisional application for the idea in February 2015 and after considering your business options you decided to file for a patent  11 months later. In this example, had you not initially filed a provisional application and instead considered all your options before filing for a patent in January 2016, it would be much harder to prove you came up with the idea first.

Some details of your provisional application, such as the invention title and applicant name, will be published in the Australian Official Journal of Patents. However, we will not publicly disclose any of the technical or scientific details of your application.

International protection

Options for protection overseas

An Australian patent provides protection only within Australia. To obtain similar protection in other countries you generally have two choices:

  • File separate patent applications in each country. If you only intend to file in a few countries, this may be the most cost effective option.
  • File a single international application under the Patent Cooperation Treaty (PCT) which is administered by the World Intellectual Property Organization (WIPO). This path gives your application automatic effect in 148 countries, including Australia, where your PCT application becomes an application for a standard patent.

Whichever option you choose, you will still end up with separate patent applications in each county. The PCT is simply a method of facilitating the filing of a patent application in a number of countries simultaneously and all patent rights are granted by national or regional patent systems.

A PCT application will go through an examination process according to a set of standards accepted by all the 148 countries which are signatories to the treaty. This makes the process easier if you decide to pursue patent protection in these countries, as a lot of the groundwork has already been done.

An Australian provisional application can act as a priority document for a PCT application if the PCT application is submitted within 12 months of the submission of the provisional application.

For more information regarding the PCT visit the WIPO website and view the PCT Applicant's Guide.

Last updated: 
30 May 2016