What are the 5 requirements for obtaining a patent?

RequirementWhat it means
1. The innovation is patentable subject matterPatentable
  • New products such as toys, appliances, tools, medical devices, pharmaceutical drugs
  • New process, such as a manufacturing process or an industrial method or process
  • Software
  • Business methods
  • Some types of biological materials

Not patentable

  • Artistic creations
  • Mathematical algorithms or models
  • Abstract intellectual or mental concepts or processes
  • Plans or schemes
  • Principles or theories
2. The innovation is new (called 'novelty')You cannot patent something that is already publicly known, as it would be unfair to confer the economic benefits of a patent in relation to something that is already publicly known. The test of 'novelty' is assessed as at the date you file your application for the patent.

For this reason, if you intend to disclose your product, process or invention to someone, it is critical that you have a confidentiality agreement signed beforehand.

3. The innovation is inventiveThis requirement of an inventive step relates to the 'obviousness' of the new product, process or invention. If it is 'obvious' to a skilled person, it is not patentable.
4. The innovation is useful (called 'utility')This requirement does not relate to whether the new product, process or invention is 'useful' in terms of whether or not someone would buy it. Instead, it relates to whether the invention is capable of being made in accordance with the claims and information in the patent.

From April 2013, there has been a requirement to disclose a specific, substantial and credible use for the invention in the patent specification.

5. The innovation must not have prior useIf you have been selling the product, using the process in your business, or if you have licensed it, this prior use disqualifies it from being patentable.