Australian standard patents

20 year protection for inventive products and processes

Standard patents last for up to 20 years from their filing date. An additional year of protection can be obtained by filing a provisional patent application prior to filing an application for a standard patent.

Filing allows you to go public

Once an effective patent application is filed, you can publish, make, use and sell (etc) the invention without affecting your patent rights.

An inventive step is required

To qualify for a standard patent, the invention must be ‘novel’ and have an ‘inventive step’. ‘Novel’ means not publicly known when an initial patent application is filed, although a 12 month grace period may allow you to obtain valid patent protection if your invention is publicly known but was secret until recently.

The ‘inventive step’ threshold varies from country to country. In Australia, a non-obvious variation over what was previously publicly known is required. This threshold is lower than many people imagine. As one court put it, ‘something is obvious if it is lying in the way, so that one who takes the ordinary route will be likely to come upon it’. Anything more than this is likely sufficiently inventive to qualify for patent protection. Only a ‘scintilla of invention’ is required.

When assessing inventiveness, hindsight is impermissible – it is irrelevant that, looking back, the invention seems simple or easily made.