Omari Gates
Applying for a patent in Australia involves a demanding and complex process with strict milestones and time frames. Before applying, it is important to keep the invention secret and seek professional advice, as disclosure or a lack of knowledge can invalidate the patent. Once an application is filed, the idea can be publicly marketed as 'patent pending'. The patent application is then examined by IP Australia and, if accepted, it is published in the Australian Official Journal of Patents (AOJP) and on the Australian Patent Search. The publication of the patent means that the invention becomes public knowledge and is no longer confidential. Competitors then have three months to formally oppose the patent.
| Characteristics | Values |
|---|---|
| Patent protection | Any device, substance, method or process |
| Patent duration | 20 years for standard patents, 25 years for pharmaceutical patents |
| Patent costs | Application, examination and acceptance fees, annual renewal fees, and international fees. |
| Patent process | Keep the invention secret, file a patent application, get it published in the Australian Official Journal of Patents (AOJP), and Australian Patent Search |
| Patent publication | The patent becomes public knowledge and is no longer confidential |
| Patent examination | Request examination when filing or anytime after filing the patent application. The process takes up to 12 months, with an option to request expedited examination |
| Patent issues | Any issues raised during the examination must be resolved within 12 months |
| Patent opposition | Others have three months to oppose the patent after the acceptance is advertised in an official journal |
| Patent ownership | If the invention is a result of an employee's official duties, the patent can be owned by the employer |
| Patent advice | Seek advice from a qualified patent attorney to navigate potential problems |
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What You'll Learn
Keep your invention a secret before applying
It is imperative that you keep your invention a secret before applying for a patent. Disclosure to anyone, anywhere, in any form without a confidentiality agreement will invalidate your patent. This means that you must not demonstrate, sell, or discuss your invention in public before applying for a patent.
You can keep your invention a trade secret by maintaining the confidentiality of the details (or even the existence) of your invention. Trade secrets are not registered with an IP office but are protected by secrecy and confidentiality agreements. However, inventions that are easily copied may be difficult to keep secret, so an inventor may seek patent protection.
To avoid the complexity of the patent application process, a lack of knowledge, and potential problems, you should seek professional advice before making your application. A qualified patent attorney should be consulted to help navigate any potential problems.
You can also file a provisional application to secure a priority date. This is the date at which the patent criteria are assessed. It is important to obtain an early priority date to minimize the amount of publicly available information that can be used to object to the grant of a patent.
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Seek professional advice
While the process of applying for a patent in Australia can be completed without the help of a lawyer, it is highly recommended that you seek professional advice to ensure that your application is completed correctly and that your invention is adequately protected.
There are a number of professionals who can assist you with the patent application process, including patent attorneys,
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Publication and examination
Publication
Once a patent application has been submitted, it will be advertised in the Australian Official Journal of Patents (AOJP) and published on the Australian Patent Search. This means that the invention becomes public knowledge, and the contents of the application are no longer confidential. The publication date is set, and the patent is typically published 18 months from the earliest priority date, which is usually the filing date of the first provisional patent application. Standard patents are published again when they are accepted, as claims often change during the examination.
Examination
Examination of a standard patent must be requested within five years of filing the application. This process comes with a fee. The examination itself typically takes place 18-36 months after the patent application has been filed. It involves a detailed review by an Examiner to determine whether the patent claims included in the specification meet the requirements of patentability and can be granted. The primary considerations are whether the claims are patentable subject matter, are new, and involve an inventive step with respect to prior art.
Provisional Applications
Provisional applications are not published or examined. They are a way to obtain an early filing date for the protection of an invention. A complete application must be filed within 12 months for continued patent protection.
Grace Period
There is a 12-month grace period for filing a patent application following certain public disclosures of the invention. This means that, in certain circumstances, information made publicly available within 12 months before the filing of a complete application may be disregarded from the prior art base for the assessment of novelty and inventive step.
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Fees and renewals
There are two types of patents in Australia: standard and innovation. Standard patents are regular patents that undergo formal examination and must pass full inventive step requirements, lasting for 20 years if renewal fees are paid. Innovation patents are less stringent in their requirements and can provide up to 8 years of protection. The Australian Government is currently phasing out the innovation patent, with the deadline for filing a new one being 25 August 2021.
The costs of applying for a patent vary depending on the type of application and there are fees associated with each step of the patent process. These include application fees, renewal fees, acceptance fees, and search fees. A provisional patent application costs a minimum of $100 and can be used to signal your intention to lodge a complete application in the future. The examination of a patent costs a minimum of $550, and there may be additional legal fees if you have an attorney acting on your behalf.
Renewal fees must be paid in Australia regardless of whether the patent has been granted or not. The first annuity is paid 4 years from the date of filing and then annually on the anniversary of the filing date. It is important to note that renewal fees cannot be paid earlier than 3 months before the renewal due date. If the due date is missed, the patent will enter a 6-month grace period during which the renewal fee and a surcharge fee must be paid to maintain the patent. After this period, the patent will lapse.
Late payment is possible for up to 6 months after the original renewal deadline, with an additional late fee of $100 AUD per month. Payments can be made for multiple years in advance, which can result in the patent remaining in force with no further payment required until all previously paid years have occurred.
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Oppositions and disputes
After the notice of opposition has been filed, the opposing party has another three months to lodge a statement of grounds and particulars, which outlines the basis for the opposition and includes supporting documentation. This stage of the process can incur administrative, legal, and expert costs.
Once all the evidence has been received, the Commissioner of Patents will decide whether to hold an oral hearing or a hearing by written submissions. Written submissions must be submitted before the hearing: by the opponent ten days in advance, and by the applicant five days in advance. If the hearing is based solely on written submissions, both parties will be notified of the relevant deadlines.
Within three months of the hearing, both parties will be notified of the result. If the opposition is successful, the applicant has the opportunity to amend their patent application to address the issues raised. If the opposition is unsuccessful, the patent application will proceed to the grant.
It is important to note that the Australian patent opposition procedure is complex and time-critical. Seeking professional advice or engaging a patent attorney can help navigate potential problems and ensure that procedural steps are followed correctly.
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Frequently asked questions
A patent protects any device, substance, method or process.
You can apply for a patent in Australia by visiting IP Australia. You must keep the invention secret before you apply for a patent. Disclosure to anyone without a confidentiality agreement will invalidate the patent. Once you've submitted your application, you can request examination. This process comes with a fee. You have up to five years from your filing date to request an examination and pay the fee, otherwise your application will lapse.
The patent application process is demanding, with milestones for lodging the completed application and undergoing examination procedures within strict time frames. Once your application is accepted, it will be advertised in the Australian Official Journal of Patents (AOJP) and you will have protection for up to 20 years for standard patents and 25 years for pharmaceutical patents.
There are fees payable at different stages of the patent process, including application, examination and acceptance fees, annual renewal fees, and international fees. Costs can vary depending on how you apply and your chosen payment method.
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