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

Finger and cogs with the word Patented

COST

How much does a patent cost?

Securing 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

How to patent flow chart

PATENT TERM

How long does a patent last?

20 years is the standard patent term in Australia, the US and most other countries. The 20-year term is usually 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. more

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:

Map of countries covered by PCT patent

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

IT’S GOOD TO TALK

Any questions?

Please contact us when you’re ready to start the conversation.