Patent Lawyer Melbourne
Patents are government-granted licences which award exclusive rights to use, make, or sell a unique invention for a limited period of time. Patent protection is available for any invention that is new, able to be applied to industry, and represents an inventive improvement from what was available prior to its creation. Australian patent laws are rigorous, so inventors need to ensure that their invention is adequately unique and useful to be eligible for patent protection before they apply, as the process is lengthy and expensive.
A legal professional who specialises in intellectual property will be able to assist you in drafting a patent application. In Australia, patent law is derived from the Commonwealth Patents Act 1990.
Patent law is one example of the various intellectual property (IP) instruments enforced under Australian common law. Other examples include copyright and trademark. Many law firms specialise in intellectual property and are likely to employ practitioners who are familiar with patent laws.
Prerequisites – Patent Lawyer Melbourne
For an invention to be eligible for patent protection, the following must be satisfied:
- The invention must represent a novel or inventive step forward that is an improvement on or more useful than existing technology;
- The invention must not have been secretly used in industry prior to the application;
- The invention must have industrial capabilities or applications.
In order to lodge an application, the applicant must be the inventor of the product, or a person who would have the patent assigned to them upon it being granted, or a legal successor through title or deceased estate. An employer whose employee created the invention during the course of normal work duties is also eligible to apply for a patent for that invention.
The application process
Upon deciding to apply for patent protection, you will need to make an application to IP Australia, the regulatory body for intellectual property instruments. IP Australia recommends that prospective applicants first consult a lawyer specialising in patent law to ensure that their application contains all the required information and is eligible for processing.
First, you or your attorney will need to perform a search of patent databases and other sources to ensure that the invention does not already exist.
Next, you will need to decide which sort of patent to apply for. For example, if your invention requires immediate protection and it satisfies the requirements, an innovation patent may be more suitable than a standard patent.
Once all the required information has been entered, you may file the application. Keep in mind that fees are payable at different stages of the application process, so you will need to be prepared to make payments to ensure the examination of your application can go ahead.
If you have applied for an innovation patent, your application will be examined to check that it meets the formal requirements. If these are satisfied, you will be granted the patent, buying you time to have the invention officially examined to ensure that the patent is enforceable. A standard patent is not published in the journal at this stage, as the application for a standard patent takes longer to complete.
The next step in a standard patent application is to request an examination. Patent examiners are generally engineers and technical experts who have also received training in patent law.
If the invention passes the examination and satisfies the formality requirements, acceptance of the patent will be published in the official journal. If it is not opposed, the inventor will then be granted patent rights.
Once granted, annual fees are required to maintain the patent. Standard patents may be renewed for up to 20 years, and innovation patents for up to 8 years.
Common problems – Patent Laws
As demonstrated above, the patent application process is a lengthy and expensive one. For that reason it recommended that applications are filed with the professional help of a legal profession specialising in intellectual property or patents. Many applications are made without the applicant having made a detailed search of patent databases beforehand, meaning that the application fails as the invention already exists. Some applicants also apply for protection without first checking whether or not their invention meets the criteria (innovation, novelty, etc.)
Unregistered patents and trade secrets
Inventors are not lawfully required to patent their creations. Patent law is an instrument which exists to protect the interests of inventors so that innovation is encouraged. With this in mind, inventors generally have two common options besides patent protection:
- Keeping the invention secret but still applying it for industrial purposes. In this situation the invention may become a trade secret. Inventors are able to take lawful measures to ensure that their trade secret is not uncovered by competitors. However, if a competitor does manage to uncover the trade secret, they may then patent it as their own invention (although as the original inventor you may be able to object to this). Similarly, if kept as a trade secret, your invention may be ‘invented’ by someone else who then proceeds to patent it. This would render the invention all but useless to you.
- Inventors who have decided not to apply for patent protection may choose to disclose the invention to the public. This would prevent any competitor from patenting the design, as it would now be public knowledge.
Patent law is a highly complex and specialised field. The patent application process can easily be mishandled if proper advice is not sought from a qualified individual such as an intellectual property lawyer or patent attorney. It is important to apply for the right protection required in your circumstances, and that the application is handled swiftly and efficiently to ensure that your invention is not copied or created elsewhere before it becomes protected. Appropriate legal advice can minimise the risk of your application being held up due to improper information or formality compliance.