How to patent an idea

Effective patent protection on time and within budget starts here

The patent application process often starts with an initial patent application followed by further patent applications about 12 months later. Often the initial patent application is an Australian provisional patent application. The further patent applications may include a standard patent application, an innovation patent application and/or an international patent application.

Typically the further patent applications are then examined. Examination involves a patent examiner (government official) reviewing the patent specification and considering whether the invention as defined in the patent claims qualifies for protection. Routinely, the examiner will have objections, and correspondence to persuade the examiner will follow. The correspondence will often include both argument and amendments.

Once the examiner has been persuaded, the application will be ‘accepted’. In the normal course of events, a patent is granted on the application within a few months of acceptance. Prior to grant, others (e.g. your competitors) have the opportunity to oppose the grant of patent. Only a small proportion of patent applications face formal opposition.

More on the Australian patent application process and protecting your invention internationally. Design registration, trade mark registration and copyright are other forms of intellectual property protection to consider.

Keep it secret

Generally speaking, the idea or invention must be kept secret and not sold or commercially used until you apply for a patent.

Australia, New Zealand, the US, Canada and some other countries have 12 month grace periods. So, if your idea or invention was secret up until less than 12 months ago, you may be able to obtain patent rights by acting quickly.

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Registering a patent

‘Patent registration’ is often used as a synonym for ‘granted patent’. Once a patent has been granted, the grant is automatically officially recorded with the Patent Office. There is no need to register a patent once it is granted.

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Frequently asked questions

How much does it cost to file for a patent?

Filing often costs about $6,000 + GST for a simple invention. In the longer term, an Australian standard patent often costs a total in the vicinity of $37,000 + GST spread over 21 years. More on patent costs.

Why does it take so long?

As in How to patent in Australia and How to patent internationally, it can take years to get a patent. It takes this long due to a combination of deliberate strategies to delay the process and routine Patent Office delays. Delaying has significant advantages including deferring costs (why pay for examination now when you could pay for it in a few years’ time?) and preserving the flexibility to amend the definitions of coverage that goes with a pending patent application (and is lost when a patent is granted).

The delay doesn’t have to slow you down and your idea or invention is protected in the meantime. Once your first patent application is filed, making, using and selling (etc) your idea or invention will not affect your patent rights. If an infringing product appears in the market before your patent is granted, you can accelerate the process to obtain an enforceable patent (typically within a matter of months) and then take action based on the enforceable patent.

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How do you get an idea patented?

Often it’s best to start with an Australian provisional patent application. Non-provisional patent application(s) can then be filed within the following 12 months. Often the non-provisional patent application(s) face examination within the next few years. Typically, if examination is successful, the application is accepted or allowed and then a patent is granted on the application.

The process can be expedited and there are many other options. It’s best to take advice from a patent attorney while your invention is still secret. More on how to patent.

How can I get a patent with no money?

You can’t. At the very least, Patent Office fees must be paid. Additionally, you are unlikely to secure an effective patent without a patent attorney. The patent attorney’s fees are likely to be much higher than the Patent Office fees. More on patent costs.

Can you sell an idea to a company without a patent?

Yes, but usually it’s important to keep your idea secret and have a confidentiality agreement with the company before you tell them about your idea.

How do I protect an idea without a patent?

You could simply keep your idea as a ‘trade secret’ or look to another form of intellectual property protection such as design registration, trade mark registration and copyright, although patents are often the only effective form of protection for new product ideas.