Types of patents

There are 2 types of patents in Australia:

  • A standard patent provides long-term protection and control over an invention, lasting up to 20 years. A pharmaceutical patent is a particular kind of standard patent that can last up to 25 years, in certain circumstances.
  • An innovation patent is a quick and inexpensive protection option, lasting a maximum of 8 years.

Patent protection is reliant on the payment of fees during the life of the patent. If a required fee is not paid the patent will be in a 'state of lapse' and unless the fee is paid within a set time, the patent will lapse permanently. Once the patent lapses you cannot enforce your rights and others may benefit from your hard work.

Innovation and standard patents

The innovation patent protects inventions that are not sufficiently inventive for a standard patent. It has a lower inventive threshold (an innovation patent protects inventions that include an 'innovative step' rather than an 'inventive step').

The innovation patent provides a patent right that is quick, cost effective and easier to obtain than a standard patent. It is available for most of the types of inventions currently covered by standard patents, except inventions relating to plants and animals or biological processes.

An innovation patent has a shorter protection term than a standard patent – 8 years as opposed to up to 20 years. It is granted without substantive examination. Only the formalities of the application are checked, and IP Australia does not conduct any checks to determine whether the patent is valid.

It may be more difficult to sell, license or enforce your innovation patent, and the potential monopoly rights are virtually unknown, until your patent has been examined and certified.

Examination of an innovation patent only occurs when the patent owner needs to stop others from copying their invention. Once an innovation patent has been examined and certified by IP Australia, the innovation patent will offer the same level of protection as a standard patent.

Pharmaceutical patents

A pharmaceutical patent is a standard patent that can give protection for up to 25 years for pharmaceutical substances. The Australian Patent Office allows for an extension of up to 5 years beyond the standard 20-year patent term for certain pharmaceutical patents. A pharmaceutical patent protects the IP rights of both the creators and owners, and provides time for innovators to secure the heavy research and development investment required in the chemical, medical and health fields.

This extension of the patent term for pharmaceuticals is to compensate pharmaceutical companies who would otherwise be unable to take full advantage of the 20-year term of their patents, due to a delay in obtaining regulatory approval for new products. Strict eligibility requirements apply and only some pharmaceutical products qualify. By allowing a full 'actual' patent term, costly investment into the research areas of medicine, chemistry and biotechnology is more achievable. This investment further allows others to extend upon what is currently known.

What cannot be patented?

You cannot patent abstract ideas, artistic creations, mathematical models, plans, schemes or other purely mental processes. For example, it would not have been possible to patent Einstein's theory of relativity depicted by the formula 'E=mc2'. This formula is an idea or theory of nature and not a specific device or process.

Laws of nature, such as Newton's law of gravity, are also unpatentable. However, inventions that apply these theories are patentable. Discoveries such as naturally existing chemical compounds are not patentable, but a new method of using the compound might be.

Other subject matter that cannot be patented includes inventions that would be 'contrary to law' (such as a new process to print counterfeit money) and foods or medicines that are merely mixtures of individual ingredients without any particular interaction (such as a new cake or scone recipe).

After a patent has been granted, it may, during its term, still be subject to legal challenges to its validity. You should seek professional advice where any legal challenge is made.

Also consider...

  • IP Australia provides 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.
  • The Institute of Patent and Trade Mark Attorneys of Australia is 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.
  • A directory of registered attorneys is 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.