A patent is a right that is granted for any device, substance, method or process that is new, useful and innovative or inventive.
A patent gives an exclusive right to commercially exploit an invention for the life of the patent. Breaking this down a little, a patent is basically a registered intellectual property (IP) right granted to a person or business who owns that right to the exclusion of all others over a new invention which can last for up to 20 years at a time.
What does a patent actually do? A patent gives you the right to stop other people and competitors from manufacturing, using or selling your invention within Australia without your authorisation to do so. Depending on your commercialisation strategy for your new invention, you may wish to licence the rights to manufacture and sell your patent to someone else.
If you register a patent in Australia, then you only receive protection within Australia. Depending on your business plan, you may be required to register your patent in each country that you expect to produce and sell your invention (including if your invention is licenced).
There are two types of patents granted in Australia. They include:
- Standard Patent: A standard patent can offer protection for up to 20 years at any one time before it expires. A patent application and examination can take anywhere from six months to several years.
- Innovative Patent: An innovation patent (useful for small to medium businesses seeking first market advantage) protects ideas that may not necessarily be new inventions. This type of patent protects for up to eight years and applications are typically assessed (but not examined) within one to three months. This patent does not allow the patent holder to stop others copying the innovation unless the innovation patent is examined.
Do I need a patent? If you have developed a new device, substance, method or process then you should consider patenting it and including this as a part of your business plan and strategy. You should consider the commercial return of having the invention patented against the time and costs involved in the application process and maintaining the patent. Further, if there was a high risk of the theft of your IP in foreign markets, holding a registered patent would assist in protecting against this.
In order to gain patent protection, your invention needs to be new, inventive and unique. The only creations that can’t be patented are artistic creations, mathematical models, plans, schemes or mental processes. Additionally, an important requirement of securing a patent is secrecy. If you have inadvertently discussed, sold or publicised your new invention before filing for an application, then this may affect your ability to register the patent. This is why non-disclosure agreements and deeds of confidentiality with your friends, business partners or employees, regardless of the relationship, are important to think about.
What’s involved in applying for a patent? First, you need to own the invention, have it kept secret, and searches of the invention should reveal no other similar technology. You may consider filing for a Provisional Application, which is an inexpensive and effective way to see if your invention can be patented, obtain an early priority date and buy you a further 12 months to consider your options. A priority date establishes the fact that you are the first person to file a new invention with IP Australia.
Before you file a patent application, you will likely require the services of a patent attorney, although you can do some of the application legwork yourself. You will need to engage a patent attorney to guide you through the process and draft your patent application. They will also provide you with a good indication of what the patent application process will likely cost, however there may be road bumps along the way which change the estimated cost
What are the costs involved? It depends on a few factors (such as patent attorneys fees), but a ballpark figure for drafting and filing a provisional patent application or a standard patent application will likely cost between $3,000 to $7,000. If you use the service of a patent attorney or engage professional advisors, then you should ensure that you have clarity on their fees before proceeding.
There is a lot of information available online to help guide you through the process or even to assist in upskilling you on the road ahead. Our favourite online resource is IP Australia who is the governing body in Australia for IP related applications. They offer plenty of freebies too. If you cannot find the help you are looking for online, wish to talk through your IP or if you require a patent, then reach out to the team at Bolter.