Obtaining a patent is the best way to protect your valuable intellectual property. While it’s possible to obtain a patent on your own, it’s usually far simpler to seek the help of a patent attorney Brisbane wide. An experienced attorney can help you draft and submit a patent application that offers the best protection possible against the unlawful use of your ideas. Your attorney will also be able to offer help in determining whether your invention can be patented and how the process should be handled. To give you a head start, we’re going to cover some patent basics and discuss what can and cannot be patented in Australia.

What is a Patent?

A patent is the legal right to the use of a device, substance, process or method. To be granted a patent in Australia, your application needs to detail an invention that is new, useful and involves an “inventive step.” If a patent is granted, the patent holder will have the legally enforceable right to commercially exploit the invention (such as by selling a product, teaching a method or licensing others to do so on their behalf). 

There are 5 key criteria that must be met in order to obtain an Australian patent:

1. The innovation must be patentable subject matter. We cover this in more detail below, but that includes things like appliances, software and new manufacturing processes.
2. The innovation must be new. Often called the test of “novelty,” this prevents you from patenting things that are already public knowledge.
3. The innovation must be inventive. The device, substance, process or method you developed must contain an “inventive step.” An inventive step must be something that isn’t obvious to a person who is skilled in the field. The inventive step will be examined in detail before a patent is granted.
4. The innovation cannot have been used previously. A patent will not be granted for any product, device or process that has been previously used, published or demonstrated. For this reason, it’s important not to demonstrate your product before filing a patent.

Types of Patents in Australia

Australia’s intellectual property laws can be difficult to navigate. But, generally speaking, they have been designed to be as simple as possible to minimise confusion. That means Australian inventors can obtain three different types of patent:

1. Provisional patents. A provisional patent is a simple and affordable way to establish a priority date for your invention. Your priority date is considered the official date that your invention was registered, which may help you defend against claims made by competitors. You must file a completed patent application within 12 months of filing a provisional patent or your priority date will be lost.
2. Standard patents. These are the most common types of patent in Australia. A standard patent will remain valid for 20 years from the date of filing, or 25 years for pharmaceutical products. Annual renewal fees need to be paid to maintain the patent.
3. Innovation patents. Currently being phased out by the Australian Government, innovation patents had lower requirements, making them popular in fast-moving industries such as technology. Innovation patents lodged on or before August 25th 2021 will remain valid for 8 years from their filing date.

What Can Be Patented in Australia?

An inventor that holds a patent is granted the exclusive right to commercially exploit their product. This is important because it provides incentives that encourage the development of new technologies, products and processes. For that reason, Australia’s patent laws allow you to obtain protection for a large range of inventions. As long as they meet the minimum requirements we discussed above, it’s possible to file and be granted a patent for inventions like:

• Technical and mechanical devices and appliances
• Pharmaceuticals
• Computer-related inventions (such as software and hardware)
• Business methods (such as manufacturing processes) that provide substantial benefit to a business
• Biological inventions
• Micro-organisms (such as bacteria or fungus)

What Can’t Be Patented in Australia?

While Australian legislation allows many different types of inventions to be patented, there are several types of products and processes that cannot be patented. 

One of the main requirements for patents in Australia is that the invention must be unique. You can find out whether your invention is new by performing a patent search on your own, but it’s often better to use the services of a professional patent attorney Brisbane wide. Patent attorneys have better access to international databases and will be able to search for similar or conflicting patents. Otherwise, you cannot patent:

• Mental processes
• General discoveries and ideas
• Artistic creations
• Mathematical models
• Business methods based on mere ideas or plans
• Human beings
• The biological processes for making human beings

In some cases, patents won’t be granted to inventions that have military aspects. IP Australia will decline to grant a patent in the interests of defending the Commonwealth.