Patent Duration

A granted patent typically lasts 20 years from the filing date for standard patents, provided renewal fees are paid. Early stages of the filing process are critical to secure your rights, and a patent protects your invention from patent infringement.

What are Patents?

A patent is a legal right granting exclusive protection for an invention in Australia. It prevents others from making, using or selling your invention without permission, encouraging innovation and safeguarding intellectual property, while enabling inventors to monetise their creations through licensing or commercialisation.

Types of Patents

  • Standard patents provide complete protection once the application passes examination.
  • Existing innovation patents (being phased out) offered protection for small, incremental improvements for up to 8 years.
  • Pharmaceutical substances may qualify for extensions up to 5 years due to regulatory delays.

The type of patent influences the strength and duration of protection and whether your invention can withstand scrutiny in the relevant field.

Patent Application Process

  1. Provisional patent application – secures an early filing date and “patent pending” status.
  2. Complete application – must be filed within 12 months for standard protection.
  3. Request examination – IP Australia assesses novelty, inventive step, and usefulness while reviewing prior art.

Applicants may need to provide further information or amend their applications if issues arise. International filings, including United States patents or filings in other countries, often involve entering the national phase after a PCT application.

Patent Protection & Rights

Once a patent is granted, inventors have exclusive rights to make, use, sell or license their invention. This legal monopoly allows inventors to enforce rights against patent infringement in Australia or through international agreements.

Case law confirms that patent holders can seek damages for unauthorised use, and protection only covers countries where the patent is granted. Public domain materials or abstract ideas cannot be patented.

What Can Be Patented?

Patents cover new inventions that are novel, inventive and useful, including devices, methods, processes and pharmaceutical substances.

Excluded subject matter includes abstract ideas, purely mental processes, or artistic creations. Understanding what qualifies in the relevant field is critical for a successful application.

Australian Patent Application

Applications for patent rights are filed with IP Australia. Inventors can file a provisional application to secure an early filing date, then submit a complete application within 12 months.

IP Australia conducts a formal examination to ensure the invention meets patentability criteria. Patent attorneys can provide guidance to reduce the risk of rejection and advise on potential patent infringement concerns.

Patent Term & Maintenance

  • Standard patents last 20 years from the filing date.
  • Annual fees or renewal fees must be paid to maintain protection.
  • Failure to pay allows the invention to enter the public domain.
  • Certain pharmaceutical substances can extend protection due to regulatory delays.

How Are Patents Examined?

In Australia, patents are examined through IP Australia, the government agency responsible for intellectual property.

Here’s how the process works:

  • Filing process: After lodging a standard patent application (or converting from a provisional), the applicant must request examination within a set timeframe.
  • Assessment: A patent examiner reviews whether the invention is new, involves an inventive step, and is useful in a relevant field. They search for prior art such as existing publications, case law, or other granted patents in Australia or other countries.
  • Issues raised: If the examiner finds problems, such as a lack of novelty or abstract ideas that cannot be patented, the applicant can amend the complete application or provide further information.
  • Outcome: If the application passes examination, the patent is granted, giving exclusive rights provided that annual renewal fees are paid. If it does not, the application may lapse.

International Patent Protection

Patents are territorial; protection in Australia does not extend to other countries. Inventors may file through the Patent Cooperation Treaty (PCT) to streamline protection in most countries.

International filings require careful planning, as each country has unique laws, deadlines and annual fees, and inventors must consider the costs and public domain status of inventions.

Costs of Patent Applications & Renewals

Provisional patent application – $100 (optional international-type search: $1,100)
Standard patent application – $400
Postal applications – higher fees apply: $200 provisional, $600 standard
Extension of time – $100 per month, depending on circumstances, with potential legal fees if an attorney is involved

What Happens When A Patent Expires In Australia?

When a patent expires in Australia, the exclusive rights granted to the inventor or patent holder come to an end.

This means:

  • The invention enters the public domain so that anyone can make, use, sell or import it without permission.
  • The patent holder can no longer take legal action for patent infringement.
  • Competitors are free to use the invention, often resulting in lower prices and broader availability of products.
  • For pharmaceutical patents, generic manufacturers can begin producing alternatives once protection ends unless a valid extension is in place.

In short, once renewal fees stop being paid or the full patent term (usually 20 years) is reached, protection lapses, and the invention becomes freely available to the public.

Additional Considerations

  • Early filing dates are crucial to secure priority.
  • Patent pending status can deter competitors during examination.
  • International protection involves complex laws across most countries.
  • Inventors should account for application costs and legal fees, as well as time and potential need for further information or amendments.

Conclusion

Patents are vital tools for inventors and companies seeking to protect intellectual property. By understanding the Australian patent system, seeking professional advice, and managing applications carefully, inventors can secure protection, commercialise their inventions, and stay ahead in innovation.

Patents encourage innovation by offering long-term protection for new inventions and enabling inventors to commercialise their ideas. Understanding the filing process, patent types, and protection rights is essential.

A granted patent, combined with careful management of renewal fees, ensures inventors can enforce rights against patent infringement and maximise the value of their innovation. If you are considering filing for a patent or have other questions regarding your intellectual property rights, please get in touch with our patent lawyers in Brisbane, Sydney and Melbourne at Actuate IP today.