Patents
An outline of patents & patenting in Australia and internationally
DEFINITION
What is a patent?
A patent is a type of intellectual property that is issued by a government and gives its owner the right to stop others making, using, selling and importing versions of a new product and/or process. more
DESIGN & UTILITY PATENTS
Types of patents
There are two types of patent in Australia: standard patents which last for 20 years and innovation patents which last for 8 years and are being phased out.
The wording is used differently in the USA. There are there types of patent in the USA – utility, design and plant.
US utility patents protect technical innovation and are examples of ‘patents’ as the word is used in Australia, most other places and on this page.
US design patents protect the appearance of products whereas Australia has design registrations.
US plant patents protect plant varieties whereas Australia has plant breeder’s rights.
EXCLUSIVE RIGHTS
Patent rights
A patent gives its owner the right to stop others from making, using, selling and importing certain products and/or processes. It does NOT give the right to make, use, sell and import. more
COST
How much does a patent cost?
Getting an Australian patent often costs about $17,000 + GST over about four or five years. International strategies often cost about $100,000 + GST over the first four years, e.g. if you aim to cover several individual countries plus Europe as a region. more
BENEFIT
Why file a patent?
- To preserve profit margin by limiting competition.
- To generate new income streams by licensing.
- To demonstrate to the market that you are innovative.
- To attract investors.
- To foster an innovative business culture.
IDEA OR INVENTION?
Can you patent an idea?
If the idea is a new product or process that has practical advantages, we call it an invention and there’s a good chance that it’s patentable. more
APPLICATION PROCESS
How to patent an idea
The 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) will then be examined to check that the invention qualifies. A patent is usually granted shortly after an application passes examination. more
RESERVE YOUR PLACE
What is a provisional patent application?
A provisional patent application is a place-marker that reserves your priority to patent an invention.
The filing date of an adequate provisional patent application is called the ‘priority date’. That’s the key date that patent examiners will use when assessing whether your invention qualifies for a patent. Generally speaking, a patent cannot validly cover anything that was publicly known before its priority date, although some countries have grace periods. more
PATENT TERM
How long does a patent last?
Patents usually last for 20 years. The 20-year term is calculated from the filing date of the first non-provisional patent, so an additional 12 months of protection can be secured by filing a provisional patent application.
ASSIGNING PATENTS
Can you sell a patent?
Yes – patents are commercial assets that can be bought, sold and assigned like other assets. They can also be licensed to generate royalty streams
PATENT PENDING & PRODUCT MARKING
What does ‘patent pending’ mean?
‘Patent pending’ means a patent has been applied for. Once a patent application has been filed, products and/or processes covered by the application should be marked and/or marketed accordingly. Markings such as ‘patent pending’ serve to put would-be imitators on notice of the patent application. more
PCT APPLICATIONS
What is the Patent Cooperation Treaty?
The PCT is an international agreement by which most countries each agree to treat a single international patent application as a local national patent application. PCT applications cover 157 countries:
Source: World Intellectual Property Organization
A PCT application is a good option if you’re aiming to patent in multiple countries. more
VIOLATION & BREACHES
Patent infringement
A patent is infringed by making, using and/or selling a relevant product and/or process covered by the patent, without the patent owner’s permission. The penalties for patent infringement can include an ‘injunction’ to stop the infringing action (e.g. to stop the making, using, selling and/or importing of an infringing product) and significant financial penalties. more
RESPONDING TO INFRINGEMENT
Patent enforcement
If you believe that your patent is being infringed, it is important to verify that the patent validly covers the infringing product before reaching out to the infringer. Reaching out with professionally prepared correspondence improves the prospects of success. If the dispute cannot be resolved through correspondence and/or mediation (etc), patents are enforced in the courts. more
PATENT LORE
Patent myths
LAWYER V ATTORNEY
What is a patent attorney?
Patent attorneys are specialists who secure and advise on the coverage of patents. Australian patent attorneys have both technical and legal training and are registered with the Trans-Tasman IP Attorneys Board. Patent lawyers are lawyers with particular expertise in enforcing, challenging and/or licensing patents, etc. more