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Patent basics

A patent is a legally enforceable and exclusive right to commercially exploit an invention for period of time. Unlike copyright, patent rights are not automatic and must be applied for with an application to the Patent Office in each country where protection is sought.

Who can apply for and be granted patent protection?

An application for patent protection can generally be made by one or more individuals, partnerships, companies, government entities or other legally recognised persons. However, for patent protection to be validly granted, the patent applicant must either be the inventor or must have derived rights to the invention either directly or indirectly from the inventor.

What can be patented?

Patents can be granted for products, methods, apparatus, materials or processes that are new and sufficiently inventive. Not all inventions are patentable; some subject matter is excluded.

For example, in Australia you cannot patent:

The risks of public disclosure

Public demonstration, sale or discussion of your invention before the filing of your patent may jeopardise your application.

Davies Collison Cave can help you minimise these risks during the commercialisation of an unpatented invention.
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  • human beings and the biological processes for their generation
  • artistic creations
  • mathematical models
  • plans and schemes
  • abstract ideas or concepts, although the practical implementation or application of the idea or concept may be patentable.

Basic criteria for patentability

To meet the basic criteria for patentability in Australia, an invention must be both novel (i.e. new), involve an inventive step (i.e. non-obvious), and must also be useful.

It is important to note that public use, sale (or offer for sale) or disclosure of an invention before filing a patent application can preclude or seriously prejudice any patent rights that could otherwise be obtained for the invention. You should consult a patent attorney before disclosing your invention, publicly or commercially using the invention or offering to sell the invention.

Types of patents: innovation patents and standard patents

In Australia there are two types of patents: standard patents, and innovation patents. Standard patents offer the full protection allowable, while innovation patents offer a shorter period of protection for incremental product developments.

Some key differences between the two types of patents:

  Standard patents Innovation patents
Length of protection 20 years from the filing date 8 years from the filing date
Requirements Your invention must be both ‘novel’ (i.e. new) and involve an ‘inventive step’ (i.e. not obvious). Your invention must be both ‘novel’ (i.e. new) and involve an ‘innovative step’.
Examination process Application undergoes substantive examination process before grant. Does not automatically undergo substantive examination before grant.
Enforceability Is enforceable against others once granted. Only enforceable against others once a substantive examination is performed, and the patent is ‘certified’ by the Australian Patent Office.

Learn more about the benefits of Australian innovation patents »

Priority and filing dates

During the application process, two dates are of particular importance:

  • The priority date is the date from which the inventiveness or innovativeness of your application will be considered. During the examination process, your application will be compared to information that was publicly available earlier than the priority date.
  • The filing date on which a complete application is lodged is the date from which the term of protection is calculated. Once the patent is granted, you will have the exclusive right to use your invention from the filing date.

Contact us

We can assist you in obtaining patent protection by guiding you through the process and acting on your behalf. Our team of patent attorneys draw upon over 100 years of patent drafting experience in a wide variety of technology disciplines and can meet with you to discuss patent protection for your invention. Contact us to find out more.