What is a patent and what does it protect?
A patent is a monopoly granted by the government for an invention that works or functions differently from other inventions. It is necessary for the invention to be ‘novel’ and ‘inventive’ when compared to what has been done before. This requires the invention to have a new and inventive feature, one that is innovative and contributed to the way in which the invention works.
A granted patent will allow the holder to protect the intellectual property claimed in the patent specification. Patents are considered an incentive to drive innovation and can be beneficial when conducting research and development. Depending on the type of patent protection can be gained for your invention within Australia and abroad for up to 20 years, or 25 in the case of pharmaceuticals.
Why do I need a patent?
A patent grants the holder a statutory monopoly to exploit the invention in the country in which it is granted. This right allows you to prevent or authorise others from using, selling, making or otherwise exploiting the invention, for example by importation.
The countries in which patent protection could be sought can be selected based on a variety of considerations, such as the markets for the invention, suitable manufacturing hubs, or prevalence of likely infringers for example.
When should I apply for a patent?
You should apply for a patent before disclosing your idea to anyone. Prior public disclosure of your invention may invalidate a patent application.
In most instances, if you disclose or sell your invention before filing a patent application, the application will lack novelty. However, there are limited exceptions so if you have recently disclosed your invention and wish to seek patent protection, speak to an attorney to understand your rights.
What are the steps to obtain a patent?
The first step in obtaining a patent is typically the lodgement of a provisional patent application. This application includes a specification containing a description of your invention that is clear enough and sufficient for the invention to be worked by a person skilled in the art. The provisional patent application provides an initial 12 month period of protection during which time you may develop or exploit the invention.
In order to obtain an indication of patentability an optional novelty search may be requested, this may be conducted before or after a provisional patent application is filed. If you are considering overseas applications, we strongly suggest that a novelty search be carried out. Filing overseas is considerably more expensive than in Australia and it is prudent to get an early indication of the patentability of your invention.
To continue protection of your invention, it is necessary to lodge an associated complete patent application (standard, innovation, convention or PCT) before the provisional patent application lapses.
A specification for a complete patent application may include changes made to the invention over the course of the provisional period, although if any changes depart significantly from the invention the priority date established by the provisional application may be at risk. The complete specification will often contain a more detailed description and drawings of your invention. It also contains a set of claims, which define the scope of protection for the monopoly you are seeking. At this stage any corresponding overseas applications should also be made.
A complete application will be examined by the Patent Office and your invention with be compared with prior art or previously known inventions. A patent examiner may raise objections finding your invention is similar to prior art, therefore requiring a prosecution of the application. Depending on the degree of similarity, it may still be possible to obtain patent protection for your invention.
If any objections raised during examination are overcome, a patent application may be granted. To continue protection for the entire term of the patent, it must be maintained, which typically involves paying maintenance fees before their deadlines. However other issues may arise such as challenges to the patent, or infringers may be identified for which action can be taken.
Lord and Company can act as the address for service, ensuring that valuable patent rights are suitably maintained.
A patent is a piece of property. It can be sold and traded (or even licensed) at any stage, even while it is pending.