What is a Patent?

A Patent is a right granted for a device, substance, method or process.

What is a Patent?

The primary reason for seeking Patent protection is to prevent others from taking advantage of and profiting from your invention. A Patent is a property right which can convert an intangible asset into a tangible one. It can also be licensed to one or more licencees or sold. Patents can be valued and therefore add to the value of your business and can be used to attract investors.

An invention does not need to be an enormous leap forward; it can be an improvement, even a small one, on a previously known product or process. Therefore, it is possible to obtain a Patent for simply an improvement.

Why seek Patent protection?

The primary reason for seeking Patent protection is to prevent others taking advantage of and profiting from your invention. A Patent is a property right which can convert an intangible asset into a tangible one. It can also be licensed to one or more licencees or sold. Patents can be valued and therefore add to the value of your business and can be used to attract investors.

An invention does not need to be an enormous leap forward; it can be an improvement, even a small one, on a previously known product or process. Therefore, it is possible to obtain a Patent for simply an improvement.

Searching

It is a requirement that your invention be new and not obvious. It is therefore important to search Patent databases, the internet, scientific and trade publications, including sales brochures and magazines, to ensure that your invention meets the criteria for patentability. If your invention was publicly known before you apply for a Patent, you will not be able to get a valid Patent for it.

Provisional Patent Application

A Provisional Patent Application is often the first step in the patenting process. A Provisional Patent Application is accompanied by a Specification that describes the best known version of the invention. While a Provisional Patent Application must broadly describe the invention, it must do so in such a manner that allows a person skilled in the relevant technology to be able to reproduce and perform the invention.

A Provisional Patent Application does not provide you with enforceable rights. However, the most significant benefits it provides are that:

  • it defines the date at which the newness and inventiveness of the invention will be assessed;
  • once filed, the invention, as described in the Patent Specification, can be disclosed to potential partners/investors and/or commercialised; and
  • products can be marked as “Patent Pending”.

During the 12 months following the filing of the Provisional Patent Application, it is possible to make modifications to the text of the specification accompanying the Application if your technology develops. Also, during the 12-month period, it is necessary to determine where you would like to seek Patent protection for your invention. Since Patents are a national monopoly, it is necessary to obtain Patent rights in each of the countries in which you are likely to sell, license or perform the invention.

Complete or International (PCT) Patent Application

Within 12 months of filing a Provisional Patent Application, it is necessary to file either a Complete Patent Application in each country (or region) in which protection is required, or a single International (PCT) Patent Application.

Complete Patent Application

Filing a Complete Patent Application in each country of interest is one option that may be pursued to protect your invention. A series of Complete Patent Applications may be cost-effective when protection is required in only a few (up to 4 or 5) countries.

International (PCT) Patent Applications

Filing a single International (PCT) Patent Application is preferable when protection is sought in a greater number of countries because it keeps the rights pending in a larger number of countries for longer. An Application filed under the PCT automatically designates all PCT member countries (about 150) and is the basis for pursuing National Patents in the countries of interest.

Advantages of PCT Applications include:

  • An International Search is conducted to determine whether the invention is novel and includes an inventive step, and the Search Report can assist you in making an informed decision as to whether or not to proceed further.
  • You are provided with an opportunity to amend the PCT Application to facilitate passage through the various foreign Patent Offices.
  • Patent Application filings in each foreign Patent Office can be delayed for a period of up to 30 months from the earliest filing date, during which time financial backing for the invention may be sought and/or gained from an investor, or the invention may be sold or licensed to another party.

Innovation Patent Applications

In Australia, a “second tier” Innovation Patent remains available. While other countries have “second tier” rights such as, utility models, the Innovation Patent is only available in Australia. Innovation Patents are, however, being phased out. Under the phase-out, no Application with an earliest filing date after 25 August 2021 can lead to valid Innovation Patent rights. Where an existing Patent Application has an earliest filing date before 25 August 2021, it may be possible to obtain a valid, enforceable Innovation Patent by filing a Divisional Application or converting to innovation status.

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