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Patents and Standards: Patents

What is a patent?

Hot air balloon image 

 A patent:

  • Gives effective protection if you have invented new technology that will lead to a product, composition or process with commercial gain
  •  Is legally enforceable and gives the owner the exclusive right to commercially exploit the invention for the life of the patent
  •  Must be formally applied for, giving exclusive rights to the invention. In  return, patent applicants must provide a full description of how the invention works. This information becomes public and can provide the basis for further research by others

Patent information

  
Audience: may be intended for general public, researchers or students. Coverage: gives inventors the exclusive right to use and profit from their inventions
Written by: inventor and authorised by Intellectual Property Office/The Patent Office which determines whether an invention is novel, useful and obvious.
Timeliness: granted for specific periods of time depending on the type of patent, for example from 6 years to 20 years.
Content: background of the invention, drawings and a description of what the patent does.
Slant: for example, there may be an industrial or safety bias.

There is no such thing as an 'international patent' but you can get patents granted in a number of different countries and protect your invention.

It is important to note that an Australian patent provides protection only within Australia. If you want to apply for a patent in other countries, you can:

  • File separate patent applications in each country or
  • File a single international application. This will take effect in all countries that are party to the PCT (Patent Cooperation Treaty: with over 120 member countries, including Australia)

You can then:

  • Choose to proceed with it in whichever country you select at a later date
  • NOTE: there are differences between countries in the terms of the patent granted, its legal effect, cost and application procedures

Regardless of the option chosen, the inventor will need to apply for a separate patent application to each intellectual property office in every country. This way, the inventor would be granted patents in a number of different countries for the protection of the same invention.

 

Each country has its own intellectual property office, which comply with the Patent Cooperation Treaty (PCT), World Intellectual Property Organisation (WIPO) and the International Convention for the Protection of Industrial Property (Paris Convention).

World Intellectual Property Organization (WIPO) is an international organization dedicated to promoting information about industrial property and copyright. WIPO is one of the specialized agencies of the United Nations and administers 23 international treaties dealing with different aspects of intellectual property protection. WIPO includes 182 nations as member states.

Patent Cooperation Treaty (PCT) allows for an inventor to simultaneously seek protection for an invention in each of a large number of countries throughout the world.

Paris Convention for the Protection of Industrial Property (Paris Convention) signed in Paris, France, in 1883, is one of the first intellectual property treaties.

World Intellectual Property Office (WIPO)- The United Nations agency dedicated to the use of intellectual property (patents, copyright, trademarks, designs, etc.) as a means of stimulating innovation and creativity.

European Patent Office- As the patent office for Europe, it supports innovation, competitiveness and economic growth across Europe through services delivered under the European Patent Convention.

United States Patent and Trademark Office (USPTO)- Is the Federal agency for granting U.S. patents and registering trademarks.

Australian patents

Patent Types
  Innovation Patent Standard Patent
Features: Is a relatively fast, inexpensive protection option lasting a maximum of 8 years. The innovation patent replaced the petty patent on 24 May 2001 Gives long-term protection and control over an invention. The date when the complete application was filed is known as the priority date. Annual renewal fees must be paid during this term for the grant to be continued
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 form 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
Examination: 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. This can only be requested by the applicant
Certification: 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 N/A
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 8 years if annual fees are paid Up to 20 years if annual fees are paid (or up to 25 years for pharmaceuticals)
Lapsed patents:  You can apply for an extension of time to restore a patent or patent application which has lapsed or ceased because you did not pay a fee of take some other action in time. Contact IP Australia.
How long does the process take? Approximately 1 month for grant. 6 months for examination if you make a request 6 months to several years depending on circumstances 

Artistic creations, mathematical models, plans, schemes or other purely mental processes cannot be patented. To apply for a patent in Australia contact IP Australia, a federal government organisation administering Australian patents.

AusPat is IP Australia’s comprehensive search system for information on Australian patents. AusPat has three search interfaces. This User Guide provides an overview on how to conduct searches using these search interfaces.