Without patent protection, an idea can potentially be copied by anyone, opening the possibility of others gaining unfair profits from your idea. Obtaining patent protection is therefore a significant facet 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, permit a ‘grace period’ under certain circumstances. Once a public disclosure of an invention is made with the consent of a nominated person (usually the applicant), a grace period of 12 months provides that such a public disclosure does not invalidate a subsequent patent application. However, a complete patent application must then be filed within 12 months of the disclosure. Written confidentiality agreements for employees, business partners or advisers are often introduced as measures to protect against unwarranted public disclosure.
Patent Help: Can you help me patent my idea?
Whether your idea is patentable depends on the country’s patent laws and the relevant patent office which will, as a 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:
- Novelty — the invention is novel or “new” in light of the prior art information
- Inventive step — the invention would not have been obvious to a person skilled in the relevant art in light of the common general knowledge as it existed in the patent area before the priority date of the relevant claim
- Useful — the idea functions as described in the specification
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 Help: Can you help me with the patent process?
The filing of a provisional patent application with IP Australia is usually the first action taken, as it is provides you with a priority date and 12 months’ protection from that date to further develop your invention or refine your patent specification. This period may also be utilised to consider the commercial prospects of your invention and whether it is worthwhile to pursue patent protection beyond this stage. Provisional patent applications can now also 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, in addition to, ideally, your claims for the patent rights you are seeking. As such, it is important that you draft your specification broadly so that its full scope can be implemented in the future without fear of circumvention by copiers. A registered patent attorney is uniquely qualified to draft a specification in this manner, formulating the most relevant 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 will help you to determine whether your application will be successful and enable you to gauge your prosecution options in later stages of the application process.
The next step involves the filing of a complete application, which needs to be done before the end of the 12 month deadline. 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).
The PCT application establishes a filing date in the 140 or so countries which are party to the PCT, providing you with the opportunity to obtain patent protection in any of those countries you wish. Carrying this out is then merely a matter of filing what is called a “national phase application” in each such country, to be done within approximately 30 - 31 months of the priority date.
Another option is to file a complete direct application in each country of your choosing without going through the PCT application process. This is particularly relevant if you are only seeking protection in a few countries.
Patent Help: Who can provide me with more patent help?
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 utilises both technical expertise and legal knowhow relating toIP to formulate sufficiently broad and effective claims for your invention, resulting in a specification with unbridled scope for the invention’s operation in the future.
Patent attorneys are also able to provide IP advice, the managing various forms of IP from conception to transfer of rights and, if necessary, acting for clients where an infringement situation has taken place.
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.