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 20 years for standard patents and 25 years for pharmaceutical patents.
Patent law is one means through which intellectual property is protected in Australia. As a patent owner you are able to protect your invention and can enforce your rights in Court through litigation. There are various steps to protect your invention if a competitor is infringing your rights, including issuing a letter of demand first and seeking alternative dispute resolution before proceeding to Court.
Other forms of intellectual property law include copyright and trademark. Some legal firms have particular expertise in intellectual property, so it is possible to obtain 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.
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 and 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.
Prior to 25 August 2021, inventors were able to register innovation patents. However, innovation patents have been phased out, with the last innovation patents to expire in 2029. Innovation patents provide protection to inventions or innovations that do not meet the strict requirements for standard patent protection. Innovation patent protection was awarded to inventions that represented an innovative step forward, but which did not constitute an entirely new invention. As the design being protected by an innovation patent is not entirely new, examination was not immediately required.
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 – 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..
- Acceptance and grant of patent – Once a patent has passed an examination and has 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.
- Renewal – To maintain your patent you will need to pay renewal fees. The first renewal is due four years after the filing date and all following renewals are payable yearly. Standard patents can be renewed for up to 20 years. Pharmaceutical patents can be renewed for up to 25 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.
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.