- What is a Patent?
- How do I get a Patent?
- Patent costs
- Overseas Patents
- Patent infringement
- Patent searches
Made a great invention? Would other people like to be able to use your invention?
If no action is taken to protect your invention it will be free to be used by others. A patent owner can prevent others from using the patented invention without permission, in the countries where protection is held. Patent owners can therefore get financial gain and a competitive business edge through this monopoly.
A patent is a legal right, granted by the government and administered, in Australia, by IP Australia which conveys to the patent owner a monopoly to “exploit” the invention. To exploit is defined in the Patents Act 1990 and includes to sell, offer for sale, hire, keep, import or export a patented product or the product of a patented method or process. If the patent is for a method or process “exploit” also includes to use the process.
As a patent owner you can use the patent exclusively yourself and the monopoly in the patented invention should enable your business to have a significant advantage over other traders. Patent owners can also sell rights to exploit the patent to third parties, usually for a lump sum payment. There are professional inventors who invent regularly but do not manufacture themselves, instead earning an income from selling the rights to do so. Rights can also be licensed to one or more parties in return for a regular royalty payment, for example.
Third parties must seek authority from the patent owner to exploit the patent or they risk infringement proceedings. Infringement may be found if, without authority, a third party exploits the invention, eg sells or offers for sale a product made according to the invention. Proceedings may lead to an injunction against the third party and, if successful, payment of damages to the patent owner, for example.
There are three stages to getting a patent:
1. File a Patent Application
2. Search & Examination
3. Acceptance & Grant
1. File a Patent Application
Patent applications are filed at the Australian Patent Office IP Australia together with payment of official fees. Patent applications typically include a specification, drawings and “claims” to the monopoly sought. The specification is an important technical document which should be prepared with great care and attention to detail; important information omitted may not usually be added in later. Applications may be for a provisional patent, complete patent, innovation patent or PCT international patent application. For more detailed information please refer to our Workshops page or contact TJ IP™ Patents, Trade Marks & Designs™ intellectual property services for assistance. Overseas Associates should also refer to the Useful Information page.
2. Search & Examination
IP Australia examines the applications to see if the requirements of the Patents Act 1990 have been met, including the key requirements of novelty and inventive step. An international search of published documents is conducted to look for publications of similar inventions that may mean that the invention lacks novelty or inventive step. An examination report may issue if there are any objections to acceptance; submissions and amendments may then be made to attempt to overcome the objections.
3. Acceptance & Grant
If all the requirements of the Patents Act 1990 are met the patent application should be accepted and the details published. Third parties may at this time oppose grant of the application. Once the opposition period has been traversed and the acceptance fees paid the application will proceed to registration and grant. Details of the rights are held on a database at IP Australia .
A patent application usually takes 2-4 years after filing to become a granted patent. The process can be sped up to some extent, if desired.
Patent rights can last 20 years from the filing date, provided all the annual fees are paid.
An Australian complete standard patent typically costs A$5000-A$8000 from application through to grant, depending on the issues raised at examination and the number of claims. Overseas applications cost about the same or more, but savings can be made by utilising the PCT international patent application. Please contact TJIP™ Patents, Trade Marks & Designs™ intellectual property services for assistance if you would like a copy of our cost sheets or information on specific costs.
Individual overseas patent applications can be filed based on the Australian application in the countries of interest. The overseas applications can claim the filing date of the Australian application. Alternatively, a PCT international application can be made which keeps rights in the invention alive in most countries for longer. A PCT application is searched and examined as a single application before the choice need be made as to which countries to pursue the invention. If you would like further information about overseas patents including the PCT please refer to the our Workshops page or contact us.
Infringement is exploitation of a patented invention without the authority of the patent owner. We can investigate your rights and based on the assessment and advice of other legal representatives you will be advised whether to bring an action of infringement. If you have patent rights and you believe your rights are being infringed, such as by sale or importation of the patented product in Australia you should seek professional advice as soon as possible. If you are a trader who would like to know if there are patent rights on a particular product we can also advise you on freedom to use searches, or validity issues.
Patent searches are conducted during examination of a patent application to assess novelty and inventiveness of the claimed invention. Privately conducted searches may also be made at any time. Other types of searches may be freedom to operate, due diligence searches or searches for specific patents or applications. We can provide search results to you together with a considered assessment of the results.
The above information is intended as an introduction only; professional advice should be sought on your specific case before taking any action.
If you would like a free initial discussion on possible patent rights or other intellectual property rights please contact Tara Parish by e-mail or call +61 (0)7 4772 5775.
