What is a patent?

A patent is a commercial asset which gives its owner the right to stop others making, using and selling versions of an invention. Patents are granted by governments, usually country by country, and typically last for 20 years.

Exclusive rights

The right is often described as an ‘exclusive right’, as in the right to exclude others from the invention. However, a patent does not give the right to make, use and sell the invention.

Imagine that your competitor has a patented product; you see room for improvement and patent the improved version. It could well be that your patent and the competitor’s original patent both cover the improved version and neither of you are allowed to make the improved version unless you and your competitor co-operate.

Making, using and selling

An Australian patent gives the exclusive right to ‘exploit’ the invention:

exploit, in relation to an invention, includes:

(a)  where the invention is a product—make, hire, sell or otherwise dispose of the product, offer to make, sell, hire or otherwise dispose of it, use or import it, or keep it for the purpose of doing any of those things; or

(b)  where the invention is a method or process—use the method or process or do any act mentioned in paragraph (a) in respect of a product resulting from such use.”

Patents Act 1990 – Schedule 1

What is an invention?

An invention is an idea, such as a new product or process, that has practical advantages.

Abstract ideas, such as a mathematical algorithm without practical application, are not patentable. On the other hand, a new machine that uses the algorithm for some practical purpose could be patentable.

Further reading