Getting started

A patent is a right granted to the inventor for a device, substance, method or process that is new when compared with what is already known. A patent protects new inventions and covers how things work, what they do, how they do it, what they are made of and how they are made. It gives the owner the right to prevent others from making, using, importing or selling the invention without permission.

A patent is legally enforceable. It gives the inventor exclusive right to commercially exploit her / his invention for the life of the patent.

Patents are often granted for small, incremental improvements to a known technology. Patents can be awarded to a material, a process, a new use of an existing material, or an improvement on an existing technology, so long as it can be demonstrated to be new, useful, and not obvious to other professionals in the field.

A patent lasts for a set period of time (most commonly 20 years) to exclusively make, use or sell, any device, substance, method or process, which is new, inventive and useful. A patent application is a descriptive document (often including diagrams) that contains concise written statements that define the invention covered by the patent application.

Most would argue that patent protection fosters technological, economic and social advancement.

According to the UK Intellectual Property Office, for an inventor to be granted a patent ...

the invention, must:

• be new;
• have an inventive step that is not obvious to someone with knowledge and experience in the subject;
• be capable of being made or used in some kind of industry.

the invention must not be:

• a scientific or mathematical discovery, theory or method;
• a literary, dramatic, musical or artistic work;
• a way of performing a mental act, playing a game or doing business;
• the presentation of information, or some computer programs;
• an animal or plant variety;
• a method of medical treatment or diagnosis;
• against public policy or morality.

 Read IP Australia's "Choosing the right IP" for a patent overview.

Types of patents and their time limits

• An Australian standard patent lasts for up to 20 years;
• An innovation patent only lasts for up to 8 years;
• Pharmaceutical patents can last up to 25 years. 

Inventors are required to pay annual maintenance fees on their patent/patent application.

Prior art is any evidence that an invention was already publicly known or available (in whole or in part) before the effective filing date of a patent application.

The most common reason a patent office will give for rejecting claims in a patent application is prior art. Discovery of prior art shows an invention is not “new” or “non-obvious”. “New” and “non-obvious” are the two most important requirements in determining whether an invention is patentable.

Prior Art Search
A prior art search helps to determine whether or not it is worthwhile filing for a patent. Prior art that shows something is similar to your invention may restrict your ability to have your invention patented.

In order for you to obtain a patent, your invention must be new and involve an inventive or innovative step. If a product similar to your invention has been patented or described in a printed publication anywhere in the world, it may affect the possibility of you gaining patent protection.

The aim of a prior art search is to determine whether your invention is novel and inventive to people within that industry or field.

Source: IP Australia

Publishing or publicly disclosing your research before filing a patent application can severely limit your likelihood of being granted a patent.

The standard advice is first patent; then publish.

For protection in the United States inventors have one year to file a patent application after the first public disclosure. To obtain protection in most other countries however a patent application must be filed prior to any disclosure to the public. Most jurisdictions do not offer the one-year grace period as exists in the USA

What constitutes public disclosure?

Under United States law, a public disclosure occurs when an invention is:

a) Described in a printed publication (anywhere in the world);
b) Placed in public use in the United States; or
c) Offered for sale in the United States.

Seeking a patent first does not preclude publication of research results, and in most cases does not significantly delay publishing. To retain the potential for foreign patents a U.S. patent application must be filed before any description of the invention is published in any article, abstract, thesis, presentation or other public format.