Getting a patent can seem like a complex and daunting prospect. However, once you understand the basic principles and processes behind patent applications, and the requirements your invention needs to meet to qualify for patent protection, you’ll realise it’s not so overwhelming after all.

What are patents for?

Patents exist to encourage innovation. When a patent is granted, the details are published, and anyone has the right to access the database. This means that inventors can start research and development from the cutting edge, rather than wasting resources reinventing the wheel.

In exchange for sharing their knowledge with the world, the inventor receives patent rights from the government. These stop anyone else from legally making, using, importing, or selling the invention for up to 20 years, giving the inventor fair opportunity to profit from their work.

What makes an invention ‘patentable’?

To qualify for patent protection, you need to prove that your invention is both ‘new’ and ‘inventive’ compared to any existing technology. That means compared to anything that has been used or disclosed anywhere in the world before the date of your application (known as ‘prior art’).

  • To be ‘novel’, your invention must not be the same (have all the same features) as any existing technology.

Since your invention will be examined against any existing technology (including your own) that is ‘in the public domain’ at the time of your application, it’s vital that you don’t make any public disclosure or commercial use of your invention until after you file.

  • To be ‘inventive’, the differences between your invention and any existing technology must not be ‘obvious to a person skilled in the art’. This makes it a much more subjective test, since it’s difficult to establish who a ‘person skilled in the art’ would be, what knowledge they would have had, and whether your invention takes the technology in an unexpected direction.

I approach the inventiveness argument by looking for benefits and advantages your invention provides that the prior art doesn’t offer.

The patent process

In most cases, the first step is to file a provisional patent application at the Australian patent office (IP Australia).

The date you file your application is called the ‘priority date’. When IP Australia assesses your invention, it will compare it to any technology that was available before that date—so once you’ve filed your provisional patent application, you can use or disclose your invention without jeopardising its patentability.

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