Without patent protection, an idea is open to be copied by anyone, allowing them to unfairly profit from it. Obtaining patent protection is consequently an important part of your invention’s marketing strategy.
Prior to filing a patent application, care should be taken not to make a public disclosure of your idea, as doing so can potentially result in loss of the opportunity to patent it. Some countries, including Australia, allow what is called a ‘grace period’ under certain circumstances. If you make a public disclosure of an invention with the consent of a nominated person (usually the applicant), a grace period applies, where such a public disclosure does not result in the invalidity of a subsequent patent application. However, in such a situation, a complete application is required to be filed within 12 months of the disclosure.
Conversing with employees, business partners or advisers about your invention is also permissible, but only on a confidential basis. Written confidentiality agreements are therefore often implemented as safeguards to protect against public disclosure.
Patent Info: What kind of subject matter is patentable?
Whether your idea is patentable depends on the country’s patent laws and the relevant patent office which will, as part of an examination process, check your idea against such laws. In Australia, the basic requirements are that the idea be new, inventive and useful. Inclusive of this, are devices, substances, methods and processes as, generally, patentable subject matter. Conversely, entities such as artistic creations, mathematical models, plans or other purely mental or artistic processes are not patentable.
Patent Info: What is the patent process?
The filing of a provisional patent application with IP Australia (Australia’s patent office) is often your first step in seeking patent protection, and provides you with 12 months’ protection to further develop your invention or refine your patent specification. Furthermore, this time may be used to determine the commercial prospects of your invention and whether it is worthwhile to pursue patent protection beyond this stage. Provisional patent applications can now be filed online.
Your provisional patent application must comprise a patent specification as well as forms detailing your application. The patent specification itself must provide a description of your invention and its characteristics, complete with, ideally, your claims for the patent rights you are seeking. The specification should therefore be of large enough scope so as to reduce the chance of imitators getting around it. A registered patent attorney is specifically qualified to draft a specification in this manner, whilst carefully and accurately shaping the most appropriate claims for your idea.
Furthermore, a patent search is often performed to identify possible relevant prior art relating to the invention. The patent information obtained from this search may assist you in determining whether your application will be successful and also enable you to gauge your prosecution options in later stages of the application process.
By the end of the 12 month period from the priority date, you must file a complete application. This is the next step in securing your patent. Failure to do so will result in a loss of priority. The complete application may take the form of a complete national application with the relevant patent office or, where multiple countries are sought for patent protection, a Patent Cooperation Treaty (PCT) international application with the World Intellectual Property Organisation (WIPO).
Where potentially a strong market exists for the product or process overseas, the PCT application is generally used. The PCT application gives you the opportunity to obtain patent protection in any of the 140 or so countries which are party to the PCT. Establishing protection in a particular country subsequently involves filing what is called a “national phase application” in each such country, and this must be done within 30 or 31 months of the priority date, depending on the country.
Depending on the number of countries in which you are seeking protection (and the associated costs), you may wish to simply file complete direct applications in each desired country without going through the PCT application process.
Patent Info: Who can provide me with more patent info?
Patent attorneys are uniquely qualified to represent patent applicants or patent holders, having been specifically trained to come up with ways in which an idea might be infringed, and accordingly to develop specifications which protect against potential imitators.
An insightful patent attorney combines both technical expertise and legal knowhow to generate a broad and efficacious set of claims for your invention, resulting in a specification with unbridled scope for the invention’s operation in the future.
Patent attorneys are further able to provide more general IP advice, including managing various forms of IP from conception to transfer of rights, in addition to acting for clients before the relevant patent office, such as IP Australia, in patent opposition proceedings.
Important Disclaimer: The information on this website is not legal or professional advice. The information may:
- not be correct;
- only relate to the law or practice in a given country; and/or
- be outdated.
For more information, please contact the Site Administrator: Baxter IP.