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A standard patent, once granted in Australia, gives the patent owner a monopoly to exploit the invention for the term of the patent. In return, the government, through the Patent Office (part of IP Australia), requires from the patent applicant:

  • filing of a complete patent specification which describes the invention sufficiently to allow others to understand and implement it, including the best method known to the applicant of performing the invention, and includes one or more claims which clearly define the scope of the monopoly and are fairly based on the disclosure in the patent specification;

  • that the invention relate to the types of technologies which are patentable e.g. relates to technical matter rather than to aesthetics, pure mathematics, mere plans or schemes;

  • that the invention as defined in the claims be new and inventive (for a standard patent) or innovative (for an innovation patent) over what was known and used before and has not been secretly used;

  • that the person or company to be granted the patent is the inventor or has entitlement from the inventor; and

  • fees for filing the patent application, for various steps in gaining grant of the patent and for keeping the patent in force.

The maximum term of a standard patent is 20 years from filing of the complete specification, up to 25 years for pharmaceuticals, or 8 years for an innovation patent.

By filing of a provisional application describing the invention you may delay filing of the complete specification by up to 12 months.

The contents of the patent specification become available to the public at IP Australia 18 months from the earliest "priority date" for a standard patent and upon grant for innovation patents. These records may be viewed at the state sub-branches of IP Australia for searching purposes.

Filing of a patent application establishes a "priority date" for matter adequately disclosed in the accompanying provisional or complete patent specification. The newness and inventiveness of the invention are judged as of the priority date of that patent claim, so it is essential to have at least a provisional application filed before making any non-confidential disclosure about your invention.

Since April 1 2002, Australia has allowed a grace period of 12 months prior to filing of the complete patent application against disclosure by the inventor. However, the grace period should be regarded as a backup only, as third parties may develop a similar invention independently or may gain rights to continued use of the invention, and the right to protect in foreign countries may be lost.

If the patent specification has not been professionally prepared, we recommend that you seek professional advice before making any non-confidential disclosure of your invention as inadequacies in the specification may not be able to be corrected later on. This has become even more important since 15 April 2013, with changes to the tests for the descriptive support required for the patent claims. 

Other significant changes to Australian patent law from 15 April 2013 include a stricter test for inventive step, a reduction in the time allowed for requesting examination and for overcoming objections during examination, and changes to patent opposition procedures.  For more detail, please see this summary of "Changes to Australian Patents law from April 2013" document here.

An Australian patent covers Australia only. If you wish to protect your invention in other countries, you need to file application in the countries of interest.

Australia is a member of international agreements allowing Australian patent applicants to file patent applications in foreign countries within 12 months of the first Australian patent application while retaining the original priority date, with reciprocal rights for foreign patent applicants. Australia is also a member of the Patent Co- operation Treaty (PCT) which provides the route normally used for filing such foreign patent applications.

The typical time period for gaining grant of a standard (20 year) patent in Australia is 3-5 years, including examination of the patent application by IP Australia. For innovation patents, grant occurs quickly without examination, but examination must be carried out before an innovation patent can be enforced.

For further information on the Innovation Patent system, click here for our innovation patent newsletter.

Patent and Trade Mark Attorneys - Intellectual Property Specialists
 Halfords IP, Level 7, 1 Market Street, Sydney, NSW, 2000, AUSTRALIA T: +61 2 9264 8388 | F: +61 2 9264 1810