What does it protect?
A patent is a right granted for any device, substance, method or process, which is new, inventive and useful.
What is the ‘monopoly’ right that it provides?
A patent can give effective protection if you have invented a new technology that will lead to a product, composition or process with significant long-term commercial gain. It provides exclusive rights to exploit your invention. It even protects against another person creating the same invention independently.
However you cannot patent artistic creations, mathematical models, plans, schemes or other purely mental processes.
How is the right created?
Protection for a patent is not automatic. Patents are only legally enforceable under the Patents Act 1990 once you have applied for and registered your patent. Patent registration gives the patent owner the exclusive right to commercially exploit the invention for the life of the patent.
You are likely to lose your right to register a patent if you disclose it.
There are two types of patents available in Australia:
- the first is a standard patent which gives long-term protection and control over an invention for up to 20 years;
- the second type is called an Innovation patent which is a relatively fast, inexpensive protection option, which lasts a maximum of 8 years.
The Innovation patent is a protection option intended to provide intellectual property rights for those incremental and lower level inventions that are not sufficiently inventive enough to qualify for a standard patent. The Innovative patent has a lower inventive threshold requiring only an innovative step, rather than an inventive step.
You must apply for a standard patent through IP Australia. IP Australia will examine all standard patent applications closely to ensure they meet the necessary legal requirements for granting a patent.
You can also apply for an Innovative patent through IP Australia Unlike a standard patent your application will relatively quickly as it will initially only be subjected to a formalities check. You will only need to have it examined when you need to stop others from copying your invention. This examination will only occur if requested by the patentee, a third party or the Commissioner of Patents. Once it has been examined by IP Australia to ensure it meets all of the requirements of the Patents Act 1990, it will become legally enforceable and certified.