Our New Patent Application Process Flowchart

A provisional patent application is a place-marker that reserves your priority to patent an invention. Filing an adequate Australian provisional patent application sets the ‘priority date’. This is the key date that patent examiners all around the world will use when assessing whether your idea qualifies for a patent.

Preparing and filing a provisional patent application usually takes a week or two. Once it’s filed:

• it is no longer necessary to keep the idea secret – you can go public without harming your rights in what you’ve invented so far;
• you can (and should) mark and market your idea as ‘patent pending’ to put potential imitators on notice; and
• your idea is protected in the sense that, if an imitator enters the market, you can accelerate the process to secure a patent and then to stop the imitator.

The Australian Patent Office is called IP Australia. When you have a pending Australian provisional patent application, you can ask IP Australia to conduct an ‘International-Type Search’ for pre-existing technology that might stop you getting a patent.

This search is similar to the pre-filing search earlier on in the process: it’s optional but recommended if you’re aiming to patent in multiple countries. And it’s not only a second pass. Your focus may have shifted to different aspects of your idea in view of the earlier search results or recent technical developments.

The International-Type Search is based on the wording of the patent application or updated wording we supply, so the search tests the wording as well as testing the idea.

In the months and years following national phase entry or filing separate national patent applications, each country or region will conduct its own examination process.

Patent examiners will search for relevant pre-existing technology and raise objections if they consider the patent application to cover anything that is not new or is obvious compared to what was publicly known before the initial patent application was filed.

It is routine to face objections and to respond with a combination of legal argument and amendments to restrict the patent coverage.

Corresponding with patent examiners entails costs and the risk that (after incurring all the costs to get to this point) a national examiner will locate search results that show your idea is not new and is therefore not patentable. The optional searching steps recommended earlier on reduce these costs and risk.

If the examiner is persuaded that your invention is patentable, they will allow the patent application. In Australia, we call this acceptance. Usually, a patent is granted on the application a few months later.

Patents are often grant about 4 to 5 years after the first patent application is filed. Some countries such as India and Brazil can take much longer.

Most patents have a maximum term of 20 years from the filing date of the first non-provisional patent application.

At the end of its 20-year term, a patent ‘expires’ meaning that it is no longer in effect and no further renewals are possible. In theory, competitors are now free to make, use and sell (etc) their own versions of the technology. In practice, some caution is called for – more recent patents covering more recent versions of the technology might still be in force. How long does a patent last? includes further detail.