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Can I get a patent for my invention?

Can I get a patent for my invention?

Posted 05 May 2022 by Colin Cheung

Categories: Patents

A patent can be a valuable asset for your business, however in order to qualify for patent protection an invention must meet various criteria. This article considers what types of inventions are eligible for patent protection.

What is a patent?

A patent is a government granted right (administered by IP Australia) which gives the inventor or owner of the invention an exclusive right to commercialise the invention in Australia. It provides the patentee a monopoly for a limited term to that invention, to the exclusion of all others. A patent can be obtained for a device, product, method, process or substance and protects how the invention functions. To qualify for patent protection, the invention must be new, novel and inventive or innovative.

What type of patent can I apply for in Australia?

The two types of patents in Australia are:

  1. Standard patent; and
  2. Innovation patent.

A standard patent provides a 20 year term of protection, whereas an innovation patent provides an 8 year term of protection. It should be noted that standalone innovation patent applications have now been phased out by IP Australia but can still be filed as divisional application from existing patent applications.

What are the benefits of patent protection?

There are several important potential benefits if you are able to obtain patent protection for your invention:

  1. It provides the patentee with a legally enforceable right Australia wide to stop another party / competitor infringing the patent rights in their invention;
  2. It is a business asset that can be sold or licensed;
  3. With patent protection in place, it can increase the value of your invention and related business; and
  4. By increasing the barrier to entry for your competitors, patent protection protects your market share during the 8 or 20 year term of protection, which maximises your potential returns.

What are the criteria to get a patent granted in Australia?

In order to qualify for patent protection a standard patent must meet two key criteria, as at the date of filing date of the patent (known as the ‘priority date’):

  1. Firstly, the invention must be ‘novel’ – that is, it must be new. To be novel the invention must not have been publicly disclosed or known anywhere in the world prior to the priority date.
  2. Secondly, the invention must possess an ‘inventive step’ - that is, it must not be obvious to a person skilled in the relevant industry / field in Australia.

These two key patentability criteria are judged against what is known as the ‘prior art’. The prior art comprises of any publicly available information that existed before the priority date of the filed patent application. They typically are published documents and in some cases verbal disclosures, commercial use of the invention, promotion, offering for sale or sale of the invention itself.

The other criteria also required for patent protection include:

  1. The invention must be patentable subject matter;
  2. The invention must be useful; and
  3. There must be no prior use of the invention before the priority date.

An innovation patent requires all the above same patentability criteria as a standard patent, however an innovation patent only needs to possess an ‘innovative step’ rather than an inventive step. This is a lower threshold of inventiveness compared to a standard patent.

Because a critical and key requirement of obtaining a patent is that the invention has not been publicly disclosed, it is important your patent protection strategy includes the use of suitable non-disclosure agreements / confidentiality agreements. Any early stage discussions with third parties prior to the priority date (including potential commercial partners, industrial designers, manufacturers, etc) regarding your invention should always be covered by a properly prepared non-disclosure agreement / confidentiality agreement signed by both parties. If not, the patentability of your invention may be negatively impacted.

Key takeaways

Protecting your invention by filing a patent in Australia is a critically important decision for any inventor or business. The considerations and pathways to take are complex. An early misstep could adversely and irreparably impact your ability to obtain patent protection in Australia and around the world. For that reason, when in doubt, it is strongly recommended from the very outset to only engage in discussions with any third parties with suitable non-disclosure agreements / confidentiality agreements in place first, particularly if a patent application has not yet been filed. If your invention is still in the earlier phases of development, filing a provisional patent application as well may be the prudent pathway. You should also seek the advice of an intellectual property lawyer and patent attorney.

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 (03) 9098 0713 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?

Patent protection may be sought for a device, product, method, process or substance if it meets certain criteria.

What are the requirements for patent protection?

To qualify for patent protection, the invention must be new, novel and inventive or innovative.

Do I need to keep my patent confidential?

Because a critical and key requirement of obtaining a patent is that the invention has not been publicly disclosed, it is strongly recommended from the very outset to only engage in discussions with any third parties with suitable non-disclosure agreements / confidentiality agreements in place first, particularly if a patent application has not yet been filed.