Alternatives to patents

Forms of protection under Australian law to consider as possible alternatives or additions to patents include:

• trademarks for a word or symbol that distinguishes your product or service
• designs for features of your innovation having visual appeal
• plant breeder's rights for new plant varieties
• confidentiality agreements.

Other approaches to commercialising your invention

After having considered all the options and issues, including conducting a cost-benefit analysis, you may decide not to patent your invention or apply related forms of protection such as registering a design, but explore other approaches including:

Option 1 – Trade secrets

One alternative to applying for a patent for your invention is to maintain the invention as a trade secret. If you decide to protect the invention as a trade secret there is no legal protection against someone 'reverse engineering' it to discover the trade secret. They would then be free to exploit the invention and sell it under their own brand.

Option 2 – Freely available

Another alternative to patent protection is to make details about your innovation freely available, or 'open source'. This stops someone else obtaining a patent for the same thing, but allows your competitors to freely use the invention for their own benefit. This is a useful alternative if you work in a rapidly advancing field and the time and cost involved in patenting the invention mean patenting is not commercially viable. Openly using and/or publishing details of the invention stops someone else from patenting the invention (which may prevent you from using it) and can protect your established reputation or existing trading partners.

Option 3 – 'First to market' advantage

Keeping a new invention secret while preparing to go to market, and using it to develop new products can give you a market advantage. You gain the opportunity to develop manufacturing facilities, distribution channels and branding so that when the product is launched, you are ahead of your competitors. In the meantime, your business may have reaped most of the available profits (by saturating the market) or established a brand reputation (preferably protected by trademark registration) that will give you a significant advantage over newcomers to the market.

Also consider...

• Visit IP Australia for information about patents. Topics include: about the application process; how to search for a patent; how to apply for a patent; and how to renew your patent.
• Visit the Institute of Patent and Trade Mark Attorneys of Australia—a representative body for Australian patent and trademark attorneys. This site provides the latest news and resource information about patent and trademark law in Australia.
• Use the directory of registered attorneys published by the Trans-Tasman IP Attorneys Board—a group that administers the patent attorney professions in Australia and New Zealand and the trademarks profession in Australia.