A patent is a monopoly that is granted to a person who makes a new invention in the useful arts. A patent gives a patent owner a statutory right to the exclusive use of the invention thereby allowing the patent owner to exclude other persons from exploiting the invention in the country in which the patent is registered for the term of the patent.
Generally speaking, in order for an invention to be patentable, the invention should be of the useful arts and have an industrial, commercial or trading character, as opposed to being purely artistic or an intellectual exercise. The invention must also be new and involve some ingenuity or exercise of inventive skill. It is not necessary that the invention be complex or a major breakthrough. For example, even simple or small improvements can be patented, provided that such improvements result in significant advantages.
Although it is necessary for an invention to be new at the time of first filing, Australia does provide a grace period of twelve months within which an applicant may file a complete patent application. However, it should be noted that reliance on the grace period may limit the rights granted upon issuance of a patent on the application. Indeed, a disclosure during the grace period, before the filing of a first complete patent application, may invalidate overseas applications in a majority of 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 Registered Patent Attorneys who have the appropriate knowledge, skill and qualifications for that work. We, as 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.
Standard patent applications
The term of a standard patent is 20 years, commencing on the date of filing of the complete application.
After the application is filed, it must be examined by a patent examiner before it can be accepted for grant of a patent. Examination must be requested (i.e., it does not occur automatically) and an examination fee must be paid (it may also be necessary to pay an additional search fee if no earlier reliable search report for the same invention is available). Usually, a “reliable” search report will be a report issued by any one of a list of recognised Patent Offices from around the world.
Examination must be requested within five years of the filing of the complete application, or within two months of a direction from the Patent Office to do so, 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 (at additional cost) if no earlier search report is available).
If objections are raised by the examiner, the applicant is allowed a period of 12 months to overcome all objections raised and place the application in a condition for acceptance. If and when the application is accepted by the Patent Office, acceptance is advertised in the Official Journal of Patents.
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. If an opposition is filed, both the applicant and the opponent are given an opportunity to lodge evidence, and the matter is then heard by a Delegate of the Commissioner of Patents. Generally speaking, the majority of patent applications proceed to grant unopposed. If there is no opposition, or if the opposition is unsuccessful, a patent will be granted on the application upon payment of an acceptance fee.
To maintain the patent or patent application in force, it is necessary to pay annual fees. These fees are called “continuation fees” during the application phase, and “renewal fees” after the patent has been granted and are payable from the fourth anniversary of the filing of the complete application onwards.
Importantly, it is an offence to prematurely represent that an invention is patented until a patent has actually been granted on a patent application. Once the patent has been granted, you are entitled to mark the product with the word “patented”. However, while the patent application is pending, you may use a notation such as “patent pending”, “patent applied for” or “patent application no. …”.
For further information, please download the below documents.