Should I patent my invention?

6 min read
John Coomer

If you’re an innovative person or business and you’ve come up with an invention, you’re probably wondering whether you should patent your idea. In this post, I’ll provide the information you need to decide if you should apply for a patent and how to go about it.

First, it’s important to understand the benefits of a patent, as well as the types of inventions or ideas that have the best chance of getting one.

Related: Quick guide to R&D funding in Australia

The benefits of a patent

A patent protects the intellectual property in your invention or idea. The major benefits of owning a patent are that it:

  1. Gives you the right to stop any person or business from manufacturing, using or selling your invention without your permission. Patent holders can take legal action against any person or business that infringes on their patent.
  2. Allows you to license another person or business to manufacture your invention or idea under agreed commercial terms and conditions (if you want to).

For example, you might want to license a large-scale manufacturer who has the facilities to mass-produce your invention more cost-effectively than you can. The manufacturer may also have distribution networks in place to get your invention or idea to market faster, whether domestically and/or internationally.

Editor's note: Already have a name for your invention? See if the matching domain name is available now, then register it before someone else does.

The types of inventions that have the best chance of getting patents

person in mask and gloves holding a petri dish

IP Australia is the federal government agency that’s responsible for administering intellectual property rights and legislation in Australia. According to IP Australia’s most recent statistics, the top five fields for patent applications in Australia are:

  1. Medical technology
  2. Biotechnology
  3. Pharmaceuticals
  4. Organic fine chemistry
  5. Civil engineering

Less than 10% of the applications in Australia currently come from Australian individuals or businesses. Nearly half (45%) come from the United States — far more than from any other country.

Note: Approximately 25% of all applications are rejected for not meeting all of the criteria outlined below.
How to apply for a patent in Australia

How to apply for a patent in Australia

You can apply for a patent with IP Australia. Two types are currently available:

Standard patent

This provides the holder with 20 years of protection over their intellectual property (except for pharmaceutical products, which have Australian protection for 25 years).

For a standard patent application to be successful, the invention or idea must:

  • Differ in some way from existing technology
  • Be useful
  • Involve an inventive step that isn’t obvious (even to someone with relevant experience and knowledge)

Depending on the complexity of your invention, a standard application can take from six months to several years to be assessed. If your application is approved, it will be registered by IP Australia.

Protect your idea while you wait for approval

It’s a good idea to make a provisional patent application within 12 months before you intend to apply for a standard one.

The date you apply for a provisional patent can help you prove that you were the first to come up with an invention or idea. This date can be very important in highly-competitive markets that rely on innovation, especially in rapidly evolving technological fields.

Innovation patent

An innovation patent gives the holder eight years of intellectual property protection.

This option is suited to inventions that have a relatively short shelf life and that are small improvements to existing inventions.

If you have a ground-breaking invention, you should consider applying for a standard patent instead.

For an innovation patent to be successful, the invention or idea must:

  • Differ in some way from existing technology
  • Be useful
  • Involve an innovative step

This step differs from the ‘inventive step’ required for a standard application and is less difficult to prove. An innovative step exists when the invention is new and makes a substantial contribution to the working of an existing invention.

3D Printers Used to Prototype New Inventions
Some startups use 3D printers to create prototypes of their new inventions.

Innovation patents are cheaper and quicker to obtain than standard ones. If your application is successful, it is granted within a month.

However, innovation patents in Australia are currently being phased out. IP Australia will no longer accept applications after 25 August 2021. Those that are in force prior to that date will remain in force until their expiry date. Applications that are submitted before that date will also still be assessed.

How to apply for a patent internationally

It’s important to understand that a registered patent with IP Australia only gives you intellectual property rights and protection for your invention or idea in Australia. If you want to apply for international property protection, you have two options:

Option 1:

File separate applications in each country where you want to have that protection.

These applications will need to be made with each country’s body equivalent to IP Australia. A decision on whether to apply for international patents will depend on whether you have a potential international market for your invention or idea, and if so, in which countries.

Option 2:

File a single international application with the World Intellectual Property Organization (WIPO). If your WIPO patent application is successful, your invention will have intellectual property protection in 193 WIPO member states.

How much does it cost to apply for a patent?

Applying for and maintaining patent protection is expensive. Fees in Australia vary depending on factors such as:

  • The type of patent you’re applying for (provisional, standard or innovation)
  • Examination and search fees as part of the application and assessment process
  • Acceptance fees if your application is successful
  • The annual renewal fees if your application is successful
Engineer with Schematic Displayed on Computer

The costs of applying for and maintaining international patent protection vary from country to country. Some are more expensive than others. However in general, the fewer countries that you apply to, the lower your fees will be (and vice versa).

The bottom line

Patents protect your intellectual property from being copied, stolen or used without your permission. However, applying for this protection can be an expensive and time-consuming process, both in Australia and internationally.

To be worthwhile, the potential benefits that the protection can provide must outweigh the cost.

Finally, if you decide to apply for one, it’s worth getting legal advice from a specialist patent attorney to help you to submit your application.

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