Australian patents: An introduction

Victorian Patent 1033 – Example of an early Australian patent for mining equipment.

So, you’ve built a better mousetrap and you think that it’s going to put you on easy street? Before you give up your day job you should obtain a patent, the best form of legal protection for an inventor.

What is a patent?

A patent is the sole right, given to you by law, to make, use, sell, import or hire your invention. If it is a new or improved machine, process, method of manufacture or synthetic composition of matter, you can obtain a patent for it. Patents in Australia are valid for 20 years (pharmaceutical-related standard patents are good for up to 25 years) as long as annual renewal fees are paid.

For inventions that have a short commercial life which might be rapidly overtaken by newer inventions – such as technological gadgets – it may be advisable to apply for an ‘innovation patent’, which is one of the fastest ways of obtaining protection and has a maximum life of 8 years.

Once you have a patent or registered design, anyone who wants to use your invention or design must get your permission and pay you a fee or royalty. Otherwise you can take them to court and recover damages for any losses you may have suffered.

You cannot prevent the government of the day from using your invention in the interests of the country, or from ordering you to keep details of a defence-related patent secret – but the government must pay you a reasonable royalty in exchange.

Submitting a patent application

To qualify for a valid patent your invention must be new, inventive and useful. If you display your invention at a trade fair or in a magazine before you apply for a patent, you may not be able to obtain a valid patent later on. You may also not be entitled to one if you’ve merely improved on an existing item or a known principle in some obvious way. However, most patents are for improvements of one sort or another on existing devices or processes.

Although you can apply for a patent without a lawyer’s assistance, an experienced attorney will help make the process go more smoothly. A comprehensive guide for interested applicants in Australia is available here.

Before applying for a patent, you or your attorney should review information compiled by the Patent Office to find out if any similar or identical invention has already been registered. If none exists, you should lodge your application as soon as possible.

Your application must include a detailed account of what your invention does and how it works – and a set of claims, which define the exclusive right that you want to obtain.

You may have to submit drawings or photographs to clearly explain how the invention works. You must sign a declaration that you are the original creator and pay the designated fee. For convenience, you may apply for an intellectual property (IP) right or make a payment to renew your IP right using eServices.

To protect your invention or design in other countries you must apply for a patent in each. Most countries are signatories to the Paris Convention for the Protection of Industrial Property, which gives you the right to use your original filing date for applications in those countries if you file within 12 months of having applied for a patent in Australia.