What is a patent

Patents are used to protect the way things work. A patent is a right granted for an invention that is new and useful. A registered patent provides the owner of the invention with the exclusive right to exploit it commercially for the life of the patent. The owner also has the right to license others to make, use or sell the invention or products made using the invention.

Unlike copyright, patent protection is not granted automatically. A formal patent application must be lodged, and it is essential that the invention is not disclosed beforehand.

Patent administration in Australia

In Australia, patents are administered by IP Australia, an Australian Government organisation. Other countries have their own government offices that administer patents.

If you wish to patent an invention in multiple countries, it is necessary to file and process your application in each country. There are processes (such as those under the Patent Cooperation Treaty or the Paris Convention for the Protection of Industrial Property) that simplify some aspects of the filing process. However, you must seek professional advice, as each country has different rules. If you proceed without professional advice you may invalidate your patent in one or more other countries.

Protection offered by patents

Patents give effective protection if you have invented a new product, composition or process with prospects for significant long-term commercial gain.

A patent allows you to control the sale or use of the invention. Even if a competitor improves the invention, they may still be required to license or purchase your original patent before they can exploit the improvement.

A patent encourages the undertaking of further research, testing, effort and expenditure to develop a new product, method or process.

A patent offers you a monopoly for the duration of your patent registration. After the period of protection expires, the invention can be made, used or sold for a profit by anyone.

In return for the monopoly, you must share your know-how with the world by making a full description of how your invention works publicly available. This information provides the basis for further research and subsequent invention by others.

The Patents Act 1990 (Cwlth) (section 119C) provides that certain experimental activities, as distinct from commercialisation activities, do not infringe a patent.

What is an invention?

An invention may be a device, substance, method or process. It can include some types of computer programs and business systems.

For an invention to qualify for a patent it must be:

• useful (utility) – it must fulfil the promises described in the application
• new – it must be different from anything done before
• non-obvious – the differences must involve an 'inventive step' (standard patent) or an 'innovative step' (innovation patent) over what has been done before
• a manner of manufacture – this includes a device, substance, method or process, but excludes purely mental processes, such as artistic creations, mathematical models, theories and ideas
• within the classes described by patent law. There are some inventions that cannot be patented because of their subject matter. This is usually because of a country's policy. Some inventions would be 'contrary to law' (e.g. an exploding safe designed to injure a thief). Other exclusions include the fine arts, and discoveries, theorems or formulae that do not have a practical application. If the invention is unpatentable, it does not matter how useful, new or inventive it is.

The invention need not be complex. Some well-known, relatively simple Australian inventions that have been patented are:

• The Hills Hoist – clothesline (1956)
• Dynamic Lifter – fertiliser (1986)
• Shepherd castors – furniture castors (1947)
• Victa lawn mower – 2-stroke petrol lawn mower (1955).

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.