What is a Patent?
A patent is a legally enforceable monopoly right that can be granted for a new invention. A patent gives its owner a statutory right to exclude others from exploiting the invention covered by the patent in the country in which the patent is granted, while the patent is in force.
Generally speaking, in order for an invention to be patentable, the invention should have an industrial, commercial or trading character, as opposed to being purely artistic or an intellectual exercise. The invention must also be new and inventive. This does not necessarily mean that the invention must be complex or a major breakthrough. For example, even simple or small improvements can be patented, provided that such improvements result in advantages. However, an invention which has already been publicly disclosed, or which is obvious, generally cannot be patented.
Although it is generally necessary for an invention to be new (i.e. different to anything that has already been publicly disclosed) at the time of first filing, Australia does provide a grace period of twelve months after an initial public disclosure by an applicant within which the applicant may file a complete patent application for the invention. However, it should be noted that a disclosure by the applicant during the grace period, before the filing of a first patent application, may still prevent the grant of a patent for the invention in many countries which do not have an equivalent grace period.
Under the Australian Patents Act, only registered Patent Attorneys are permitted to prepare and amend patent applications on behalf of clients. For a particular invention, it is desirable to choose a patent attorney who is familiar with the technology involved.
All professional work at IP Gateway is performed by or under the supervision of a Registered Patent Attorney with appropriate knowledge, skill and qualifications for that work. Registered Patent Attorneys are bound by the Code of Conduct for Patent and Trade Mark Attorneys, a copy of which is available from the Trans-Tasman IP Attorneys Board.
Patent Application Process
Standard patent applications
The maximum term of a standard patent is 20 years , commencing on the date of filing of the complete application (or the “effective filing date” if the application is derived from an earlier complete application).
After a complete patent application is filed, it must be examined by a patent examiner before it can be accepted for grant. Examination must be requested (i.e., it does not occur automatically) and an examination fee must be paid when examination is requested.
Examination must be requested within five years of the filing of the complete application, or within two months of a direction to do so from the Patent Office, whichever is the earlier. Otherwise, the application will lapse. During examination, the patent examiner will examine the application for compliance with the Patents Act and Regulations (including conducting novelty searches if no earlier search report is available).
If objections are raised by the examiner, the applicant is given a period of 12 months from the date of the first examination report to overcome all objections raised (including any objections that may arise in subsequent examination reports) and to gain acceptance of the application. If the application is accepted by the Patent Office, acceptance is then advertised in the Official Journal of Patents, and an acceptance fee (plus any applicable excess claim fees) must be paid within three months of the advertisement of acceptance.
Any person may oppose the grant of a patent on an application by filing a Notice of Opposition within three months of the advertisement of acceptance. In an opposition, both the applicant and the opponent are given an opportunity to lodge evidence, and the matter is heard by a Delegate of the Commissioner of Patents. However, the majority of patent applications that gain acceptance proceed to grant unopposed. If there is no opposition, or if the opposition is unsuccessful, a patent will be granted on the accepted application (provided the applicable fees due following acceptance have been paid).
To maintain a patent application and any resultant patent in force, it is necessary to pay “renewal” fees. The first renewal fee is due on the fourth anniversary of the filing of the complete application (or on the fourth anniversary of the “effective filing date” if the application is derived from an earlier complete application) and annually thereafter, until the patent reaches its full term, or until a decision is made to stop paying renewal fees (in which case the application or patent will lapse/cease before its possible maximum term).
It is an offence to represent that an invention is patented if a patent has not (or has not yet) actually been granted for the invention. There are also potential legal consequences associated with making “unjustified threats” of patent infringement.
