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Current legislation for patents is designed to encourage innovators to make the details of their innovations available to the public. It does this by granting the inventor a monopoly to commercialise people’s invention for a limited period of time.
WHAT IS A PATENT?
A patent is a temporary right granted by the State to the inventor of a device, substance, method or process. The right granted provides the inventor with an exclusive right to commercially exploit the invention for the duration of the patent.
There are three types of patents in Australia:
- Standard patents;
- Innovation patents;
- Patents of addition (formally known as petty patents).
WHAT IS A STANDARD PATENT?
Standard patents are the most common type of patent sought in Australia due to the long-term protection and control over an invention it provides. A standard patent will be valid for 20 years from the filing date of your application. If your invention is in relation to pharmaceutical substances, this term increases to 25 years.
To be successful in your application for a standard patent, you must demonstrate that the invention is new, involves an inventive step, and is able to be used or made within an industry.
WHAT IS AN INNOVATION PATENT?
Innovation patents are often reserved for inventions that either have a short commercial life or are not inventive enough to qualify for a standard patent. An innovation patent will be valid for 8 years from the filing date of your application.
Unlike standard patents, innovation patents do not undergo extensive examination and therefore, it often only takes one month from the date of your application to receive the outcome.
To be successful in your application for an innovation patent, you must demonstrate that the invention is new, involves an innovative step, and is able to be used or made within an industry.
WHAT IS A PATENT OF ADDITION?
As the name suggests, a patent of addition is a patent which relates to an improvement or modification of an invention which already has a patent. Patents of addition can only be applied for where the improvement or modification relates to a standard patent.
WHAT ARE THE ADVANTAGES OF PATENTING YOUR INVENTION?
The primary advantage of obtaining a patent for your invention is that you will have the exclusive right to exploit that invention. This means that you will have the monopoly of the market for your invention as competing businesses will not be allowed to copy your invention without your express authorisation.
WHAT TYPES OF INVENTIONS CAN BE PATENTED?
There are various types of inventions that can be patented, these include but are not limited to:
- Computer-related inventions
- Business methods
- Biological inventions
- Micro-organisms and other biological material
WHAT TYPES OF INVENTIONS CAN’T BE PATENTED?
There are certain types of inventions that cannot be patented, these include:
- Human beings or the biological process for their generation
- Artistic creation
- Mathematical models
- Plans, schemes or other purely mental processes.
Inventions that relate to the military or have military aspects may also be rejected on the basis of the interests of defence of the Commonwealth.
THE PROCESS OF APPLYING FOR A PATENT
Depending on the type of patent that you are applying for, the process to apply for a patent will vary.
The steps involved in applying for a standard patent are:
- Determine whether you have a valid standard patent
- Search to see if a similar standard patent already exists
- Apply for the standard patent
- Publication of a standard patent
- Examination of a standard patent
- Acceptance and grant
All patent applications need to be accompanied by either a complete specification or a provisional specification. Specifications must disclose the invention to the extent that it is comprehensive enough for a person skilled in the relevant art to perform the invention. Failure to disclose the invention to this extent may result in the refusal of a grant by the Commissioner of Patents.
If your invention is in relation to micro-organisms, your specification has further requirements to be met and it is recommended that you seek legal advice to ensure that these requirements are met.
The quality of the protection that the patent provides and its ability to successfully pass the examinations will ultimately depend on how well your application is drafted. The commercial value of your invention will also heavily depend on how well the patent application is drafted. For example, a poorly drafted application could leave out patent specifications, allowing a competitor to create a similar invention without breaching your patent. (You can find out more information about the Patents Act 1990, by clicking here).
We understand at GLG Legal the importance of getting your patent application right. We have a team of expert lawyers who have had experience in drafting patent applications to the highest standard. If you are planning to apply for a patent or are considering whether your invention is patentable, we urge you to contact our office today at (07) 3161 9555. We can assist you in obtaining the best outcome.
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