Imagine you’ve just come up with an idea that could change the world or make some part of it so much better. Exciting, right? This is how almost everything we can see and touch came to be, someone’s vision or idea brought to life.
But before you share your idea or creation with the world, you want to ensure that you can protect it from opportunistic competitors – and yes, they are everywhere. From ‘Edison’s’ lightbulb (which he appears to have ‘borrowed’ from Goebe) or Monopoly arising from the somewhat similar ‘The Game of Owners’ – it’s not uncommon for great ideas and products to be claimed by someone who capitalised on someone else’s genius moment.
Today, with a global network and highly sophisticated information-sharing systems, there are likely even more potential avenues for people to access ideas or prototypes that do not belong to them. Even the largest social media, technology and rideshare companies in the world today have been embroiled in intellectual property disputes.
And that’s why you need a patent if you have an exceptional product, system, biological invention or business modus operandi.
First of all, what exactly is a patent?
A patent is a protective legal measure, which can also be a highly valuable asset for your business. In Australia, they are granted by IP Australia, giving you exclusive rights to develop and commercialise your product or process. This means you get a headstart on business competitors.
You may also need to file a patent in other countries, as an Australian patent only provides protection here. If you decide that’s necessary, you can file a single application for over 150 countries via the Patent Cooperation Treaty.
You can’t just patent anything, though, and it’s imperative to do your homework (or have us do it for you!) before making an application. Someone may already hold a patent for it, and it must meet certain criteria, which we’ll look at shortly.
How does a patent protect my product or invention?
A patent is a government-granted right issued by IP Australia that gives you the exclusive right to commercialise your invention in Australia.
Think of it as a “No Trespassing” sign for your creation. A patent allows you to enjoy a monopoly on your invention for a limited time, whether your creation is a device, method, or even a process. It helps safeguard your idea from being copied.
What is the criteria for getting a patent in Australia?
Before we look at the patent process, you need to make sure that your invention is the invention must be new, novel and inventive or innovative.
- Novelty: Your invention must be new. If it has been publicly disclosed before your priority date, it won’t qualify.
- Inventive Step: Your invention should not be obvious to someone skilled in the field.
The criteria are assessed against prior art, which includes all publicly available information before your patent filing date. So, it’s essential to ensure your idea hasn’t been disclosed previously.
The other criteria also required for patent protection include:
- The invention must be patentable subject matter;
- The invention must be useful and
- There must be no prior use of the invention before the priority date.
Types of Patents in Australia
In Australia, there are two main application types for patents:
- Standard Patent: This is the classic gold standard option, providing a solid 20-year term of protection.
- Innovation Patent: This option grants an 8-year term of protection but is only available as a divisional application from an existing patent application.
It should be noted that standalone innovation patent applications have now been phased out by IP Australia but can still be filed as divisional applications from existing patent applications.
Why Get a Patent? The Benefits
Now that you understand what a patent is, let’s talk about why securing one is a smart move:
- Legal Protection: A patent gives you the right to prevent others from using or selling your invention without permission. This pushes competitors back from infringing on your concept.
- Asset Value: Patents are valuable business assets that can be sold or licensed, enhancing your business’s worth.
- Patent Value: Having a patented product, without selling or licensing it, can increase your business value.
- Market Advantage: Protecting your invention can establish a strong market presence and maximise your potential returns.
What are the fees for patents in Australia?
In Australia, patent application fees can vary depending on the type of application, the stages of the patent process, and any additional services required. Here’s a general breakdown of the common fees associated with patent applications and maintenance, as administered by IP Australia:
1. Application Fees
- Standard Patent Application Fee: AUD $425 (online application)
- Innovation Patent Application Fee: AUD $180 (online application)
(Note: Innovation patents have been phased out but can still be filed in certain situations like divisional applications.) - Provisional Patent Application Fee: AUD $110 (online application)
2. Examination Fees
- Request for Examination (Standard Patent): AUD $490
- Expedited Examination: Additional AUD $500
3. Acceptance and Grant Fees
- Standard Patent Grant Fee: AUD $250
- Innovation Patent Grant Fee: No additional fee for the grant
4. Renewal and Maintenance Fees
Patents in Australia need to be renewed annually to maintain protection. The renewal fees increase over time.
- Years 1 to 3: No renewal fees
- Year 4: AUD $300
- Year 5: AUD $315
- Year 10: AUD $1,410
- Year 20: AUD $2,550
(Fees increase progressively based on how long the patent is active.)
5. Additional Fees
- Amendment Fee: AUD $250 (for amendments after grant)
- Re-examination Fee: AUD $2,020
- Opposition Filing Fee: AUD $750 (for opposing the grant of a patent)
6. International Patent Fees (PCT Applications)
- International Application via Patent Cooperation Treaty (PCT): AUD $3,800 approx. (depends on exchange rates and specifics)
- National Phase Entry (Australia): AUD $370 for online application
7. Other Fees
- Late Fees: Vary depending on the type of missed deadline (e.g., AUD $100 for late examination requests)
- Patent Opposition: AUD $750 to file opposition against a patent
- Search Fees: AUD $2,200 for a preliminary patent search if desired
Cost for Professional Services
In addition to government patent protection costs, most inventors or businesses will incur patent attorney fees, which vary based on the complexity of the patent and the services required. These may cover:
- Patent Drafting: $3,000 to $10,000+
- Filing and Prosecution Costs: Additional costs for attorney services during the patent examination and approval process.
Key Notes
- The patent process can be expensive, especially for businesses seeking protection in multiple countries.
- Seeking professional advice from a patent attorney can help avoid costly mistakes.
Patents & Timing
Anyone who understands IP, patent and trademark law will understand the importance of timing. You don’t want to start too early without having done the right research and understood what’s required. You also don’t want to leave it too long, and sit on an idea until someone else takes action.
The Patent for the Telephone is an excellent example of this. Alexander Graham Bell was awarded the patent for the telephone in 1876, but did you know that Elisha Gray, a rival inventor, submitted a similar patent application on the same day? Gray’s legal team claimed that Bell had stolen their idea, leading to a lengthy legal battle.
Patent oppositions and ownership disputes can be costly and stressful, which is why it’s wise to understand patent law if you plan on becoming a patent holder.
The Importance of Confidentiality
Before revealing your brilliant invention secret, make sure to have a non-disclosure agreement or confidentiality agreement in place. A critical and key requirement of obtaining a patent is that the invention not have been publicly disclosed.
Any early stage discussions with third parties prior to the priority date (including potential commercial partners, industrial designers, and manufacturers) should always be covered by a properly prepared agreement that has been signed by both parteis. Without proper agreements, you risk jeopardising your patentability. Nobody wants to find out that their groundbreaking invention has been copied.
Key Takeaways
Here are some practical tips to keep in mind when considering patent protection:
- Sign NDAs: Always engage in discussions under non-disclosure agreements (NDAs) to protect your ideas.
- Provisional Patents: If your invention is still in development, consider filing a provisional patent application to safeguard your progress.
- Seek Expert Guidance: The patent process can be intricate, so consulting an intellectual property lawyer or a patent attorney is wise. They can help you navigate the process effectively.
Actuate IP has a team of intellectual property experts who assist with Patent Searches, Drafting, Filing & Prosecution, as well as the preparation of non-disclosure agreements / confidentiality agreements and related commercial IP agreements. If you require assistance, you can contact our team on 1300 851 138 or info@actuateip.com.au and our friendly staff will make sure you are directed to the best person to assist you with your matter.
FAQs
Is my invention patentable?
Your invention could be eligible for patent protection if it is a device, product, method, process, or substance that meets specific legal criteria. If your invention is something new, useful, and capable of being applied in an industrial context, it may be patentable. It’s important to assess whether it offers something unique and innovative compared to existing ideas or technologies.
What are the requirements for patent protection?
To qualify for patent protection in Australia, your invention must be new, meaning it hasn’t been publicly disclosed anywhere in the world. Additionally, it should be novel and possess an inventive step or, in some cases, an innovative step. This means that for patent acceptance, it must offer something that isn’t obvious to a skilled person in the field and must be capable of industrial application.
Do I need to keep my patent confidential?
Yes, maintaining confidentiality is essential before filing a patent application. If your invention is disclosed publicly before filing, it could affect its eligibility for patent protection. It’s best to engage in discussions about your invention only with third parties under non-disclosure agreements (NDAs) or confidentiality agreements to safeguard your intellectual property. This ensures your invention remains secure and patentable before officially filing with IP Australia.
What are the requirements for patent protection?
To qualify for patent protection in Australia, your invention must be new, meaning it hasn’t been publicly disclosed anywhere in the world. Additionally, it should be novel and possess an inventive step or, in some cases, an innovative step. This means it must offer something that isn’t obvious to a skilled person in the field and must be capable of industrial application.
Do I need to keep my patent confidential?
Yes, maintaining confidentiality is essential before filing a patent application. If your invention is disclosed publicly before filing, it could affect its eligibility for patent protection. It’s best to engage in discussions about your invention only with third parties under non-disclosure agreements (NDAs) or confidentiality agreements to safeguard your intellectual property. This ensures that your invention remains secure and patentable before officially filing with IP Australia.