What is a patent?
A patent is a legally enforceable and government-sanctioned right to commercially exploit an invention in the marketplace to the exclusion of all others. The monopoly lasts for the term of the patent. This term varies with the type of patent sought, with a maximum period of 20 years. Patents are not granted automatically. You must apply for a patent in order to protect your intellectual property. Australian patents are administered by the Patent Office of IP Australia, a Federal Government organisation. In Australia there are two different types of patents – standard and innovation patents.
What can be patented?
A patent can be granted in respect of various types of inventions including:
- mechanical based products and devices
- appliances and other apparatus
- business methods
- computer and internet based related inventions, such as apps.
Provisional Application
A typical starting point when seeking patent protection is to often first file a provisional application. A provisional application does not provide you with enforceable patent rights unlike a standard or innovation patent but what it does do is stake your claim to the invention for a 12 month period. In essence it puts you in the queue from the date you file the provisional application for the subject matter of that invention. Put another way it establishes an early priority date from the filing date and allows you in the subsequent 12 months to determine whether to further commercialise the invention and convert it by the end of that period into a standard or innovation patent.
Standard Patent
A standard patent provides a government granted monopoly of 20 years from the filing date of what is known as the complete application. To obtain a standard patent, the invention must meet the following criteria:
- be a manner of manufacture;
- be novel;
- be useful; and
- possess a sufficient level of inventiveness, known as inventive step
To satisfy the inventive step threshold requirement, you must be able to demonstrate that the invention applied for is not obvious to a “person skilled in the art” – a person with relevant knowledge and experience in the field relevant to the subject matter of the invention. The invention must differ from the existing state of the relevant technology.
Innovation Patent
An innovation patent is designed to protect inventions that do not meet the higher inventive threshold required for standard patents. To register an innovation patent, the invention must possess an innovative step. This means that the invention must be different from what is already known, and that the difference makes a substantial contribution to the working of the invention. It is easier to meet this requirement than the inventive step threshold of a standard patent. In certain cases it may be a commercially appropriate strategy to apply not only for a standard patent but also for an innovation patent for that same invention. An innovation patent can be divided out of the standard while the standard patent is still being examined by the Patent Office. One of the main benefits of this strategy is that you can achieve the grant of an innovation patent much earlier and obtain rights you can enforce against infringers in the meantime.
Why seek patent protection?
Obtaining a granted patent adds value to your invention and your business in the following ways:
- You can derive exclusive benefit from the financial rewards resulting from the commercialisation of the patented invention and your monopoly that you have to it, to the exclusion of others.
- You can threaten and, if required, bring patent infringement proceedings against an unauthorised user of the invention stopping their conduct and recover damages or their profit made.
- Holding a patent for an invention, even in its early stages of commercialisation, ensures a strong bargaining position when negotiating with potential partners, venture capitalists and licensees.
- A patent acts as a valuable notice of your claimed rights to the invention, deterring would-be infringers or unauthorised users.
- A patent protects your investment of time and resources in the research and development of your invention. Without this type of government granted monopoly it is near impossible to prevent competitors copying the functionality of your product or process (unless you are able to keep its inner workings a trade secret).
HOW CAN ACTUATE IP ASSIST?
Actuate IP works seamlessly in conjunction with Actuate Patents. Actuate Patents is an independent patent attorney firm and comprises qualified patent attorneys that provide an expert and tailored approach to assisting with the implementation of patent strategies and patent protection for businesses. We work with a close network of patent attorneys to complement your important patent legal strategies and disputes. Also with our fixed fee project based approach it means you can take the matter in stages and make certainty and transparency on your legal spend. Actuate Patents also works with a close network of overseas patent attorneys in all key jurisdictions meaning we can assist you with any international patent protection in an efficient way with clear focus on achieving the right outcome.