Patent Lawyers Melbourne
Patents are a form of license granted by the government that grants inventors a monopoly over their creation. Once granted patent protection, patent holders are able to exclusively sell, make, or use whatever it is that they have patented. Patent protection lasts for a limited time only, 20 years for standard patents and 8 years for innovation patents. This is to ensure that the innovative design eventually becomes publicly available.
Patent law is one means through which intellectual property is protected in Australia. Other forms of intellectual property law include copyright and trademark. Some legal firms specialise in intellectual property, so it is possible to obtain specialist advice tailored to the specific requirements of your patent application. This is highly recommended, as the patent application process is a lengthy and potentially expensive one. A patent lawyer will be able to determine whether or not your invention meets certain patent eligibility requirements, and/or whether you meet the formal requirements of the application procedure. Lawyers can also assist you in searching patent databases and other sources to check whether or not your design has already been patented. It is very important that these measures are taken prior to submitting an application, as time is of the essence when applying for a patent lest competitors or other inventors come up with your design and patent it before you do.
Commonwealth Patents Act 1990
Australian patent law is uniform across the states and territories and is enforced through the Patents Act 1990. Under the Act, patents are granted by IP Australia, a federal government agency responsible for the regulation of intellectual property matters. Australia is also a party to the main international intellectual property agreements; this ensures that local patent law is comparable to that found in other major countries.
Under the Act, two types of patents are administered in Australia:
- Standard patents (20 years) – A standard patent is a form of long-term control and protection granted to an inventor or rights holder for a particular invention. Inventions being protected under standard patents must be new/novel or represent an inventive improvement that is applicable to industry. For the purposes of patent law, invention means that the design was not obvious, even to someone with relevant technical or industrial knowledge. The invention must differ from any that is pre-existing, but it must differ in a way that requires true innovation, rather than the application of readily available information.
- Innovation patents (8 years) – Innovation patents provide protection to inventions or innovations that do not meet the strict requirements for standard patent protection. The process of applying for an innovation patent is straightforward and quick compared to applying for a standard patent, as the design does not require examination before the patent will be granted. Innovation patent protection may be awarded to inventions that represent an innovative step forward, but which do not constitute an entirely new invention. As the design being protected by an innovation patent is not entirely new, examination is not immediately required. Examination may be requested however, in order that you (the innovator) may legally enforce the innovation patent and prevent competitors from copying your design. Under the Act, patents are only legally enforceable once they are been inspected, that includes innovation patents.
The application process
- Consider legal advice from an intellectual property lawyer or patent attorney, as these professionals will be able to assist you in determining whether or not you are entitled to apply for patent protection. The first step in this direction is to conduct a thorough search of patent databases to ensure the design has not already been published. A legal professional will be able to conduct this search for you.
- Decide which form of patent is best suited to your design. You can begin by filing a provisional application, which provides IP Australia with some of the information required, and then decide later if need be.
- File your application and wait for it to be checked – If it is an innovation patent application, your patent will be published in the official journal should it be successful. A standard patent will have its eligibility for examination considered at this point.
- Examination – Once your application has been checked and deemed eligible you must request an examination to finalise the process. Patent examiners are usually technical experts who have received training in patent law, they are able to make a final decision as to whether or not a standard patent should be awarded, or an innovation patent should be enforced.
- Acceptance and grant of patent – Once a standard patent has passed an examination been published in the official journal, it has been accepted. Other inventors may challenge the granting of patent rights if they object to the design as it has been published, but if there is no objection, the patent will be granted upon payment of any final fees.
- Annual renewal – To maintain your patent you will need to pay renewal fees every year. Standard patents can be renewed for up to 20 years, whilst innovation patents have a shorter lifespan of 8 years.
It is highly recommended that you file a patent application with legal assistance from an intellectual property lawyer or patent attorney, as many applications lodged without legal assistance fail. A lawyer will be able to provide an accurate, up front estimation of whether or not your design is eligible for patent protection, as well as what type of patent protection best suits the design. They can then assist you throughout the entire process. Some law firms provide patent services for a fixed fee, which due to the lengthy nature of the patent application process, can be well worth it.
Many applications are rejected as the inventions listed within them do not meet the criteria listed under the Act, or the application itself does not meet formality requirements. Seek legal advice if you are unsure of your design’s eligibility or how to comply with the formality requirements of IP Australia’s application process.