What are patents?

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 at the Patent Office in each country where protection is sought. In Australia, patents may be granted for inventions relating to products, methods, apparatus, materials or processes.

What can be patented?

Generally speaking, a patent can be used to protect any idea involving “human intervention” leading to an “artificially created state of affairs”. This means that anything which requires some human creativity and is practically useful can potentially be patentable.

There are, however, some exclusions, such as scientific principles, discoveries (things that occur naturally but have only now been discovered), abstract ideas (such as a set of rules for playing a game) and intangible concepts (such as mathematical formulae, purely abstract business methods, etc). However, these excluded concepts may be patentable if they are used to produce some “technical effect” or “physical consequence”. In other words, if there is some perceptible alteration or change made to something, and it has commercial significance then valid patent protection may still be possible.

As each country in the world has its own patent laws, different countries generally have different approaches to what is a patentable invention. We can advise you whether or not your invention is potentially patentable in different countries, if required.

Who can apply for and be granted patent protection?

An application for patent protection can 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.

The risks of public disclosure

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

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.