An Overview of the Patent Process

The patent process often starts with a provisional patent application followed by one or more non-provisional patent application(s) about 12 months later. The non-provisional application(s) are then examined to check that the invention qualifies. A patent is usually granted shortly after an application passes examination.

This page provides an overview of the process, starting with optional steps you might take before filing the initial patent application and following the process through to grant. We start with a video explainer, follow on with written information for those who prefer to read, and link to our long-form page How to patent an idea which includes further detail.

The Australian Patent Process – 5 key steps

1. Keep it secret – generally speaking, it is important to the keep the invention secret until an initial patent application is filed, although Australia and some other countries have 12-month grace periods.
2. Assess the business case – take advice on the long term patent costs and the prospects of success: not all good ideas can be patented, and not everything that can be patented should be patented.
3. File an Australian provisional patent application – a starting point that reserves your priority to the detail you have invented so far.
4. File an Australian non-provisional patent application – filed up to 12 months after the provisional patent application to capture the original detail and any further detail that has been invented in the meantime, all in the one patent application.
5. Work with the patent examiner – patent examiners will consider the invention and raise objections if in their view the invention 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.

The International Patent Process – 9 key steps

1. Keep it secret – generally speaking, it is important to the keep the invention secret until an initial patent application is filed, although Australia and some other countries have 12-month grace periods.
2. Assess the business case – take advice on the long term patent costs and the prospects of success: not everything that can be patented should be patented.
3. Search for similar pre-existing technology (optional) – to qualify for a valid patent, the idea must be new and non-obvious compared to what is already publicly known. Searching for relevant pre-existing technology is a prudent early step, particularly if you are aiming to patent in multiple countries.
4. File an Australian provisional patent application – a starting point that serves as an international place-marker that reserves your priority to the detail you have invented so far.
5. Ask IP Australia to search for similar pre-existing technology (optional) – another due diligence step to minimise the risk of investing in patent applications that are doomed to fail.
6. File an international patent application (‘PCT Application’) – a single patent application that covers most countries and lasts until 2.5 years after the first patent application.
7. Work with the ‘international’ examiner – if an Australian files an international patent application, the Australian Patent Office will provide feedback and you will have an opportunity to respond. This is called the ‘international phase’.
8. Select and pay for the individual countries of interest – if you file an international patent application, you will need to select and pay for the individual countries of interest within 2.5 years of your first patent application being filed. This is called ‘entering the national phase’.
9. Work with the national patent examiners – patent examiners in each country will consider the invention and raise objections if in their view the invention 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.

Expediting the Patent Process

The ordinary patent application process takes years but can be expedited by skipping the early steps and immediately filing national non-provisional patent applications along with requests for expedited examination. In Australia, patent can be secured within about 7 months by expediting the process.

Whilst expedition is possible to expedite the process, it is usually best to delay, to defer cost amongst other advantages. The delay doesn’t have to slow you down and your idea is protected in the meantime. Once an adequate patent application has been filed:

• publishing, making, using and selling (etc) your idea will not harm your patent rights in what you have invented so far; and
• you are immediately protected because, if an infringing product appears in the market before your patent is granted, you can expedite the process, get the patent and then stop the infringer.

Beyond Grant

In most countries, renewal fees are payable annually and the 20^th anniversary of the initial non-provisional patent application is end of the patent’s terms. After that 20^th anniversary, no further renewals are possible. Our How much does a patent cost? and How long does a patent last? pages include further detail.