Patent Law FAQs

A patent is a government granted licence which awards an inventor exclusive rights to an invention. Patents are legally enforceable, so if you have patented an invention but become aware of someone using it without permission you are entitled to take legal action to prevent further unauthorised use and claim damages for the breach of your rights as a patent holder. Patents encourage innovation and inventiveness by ensuring that people who put in the time and effort to create something new and useful are incentivised to do so by allowing them to have control over the commercialisation of their creation.

If your invention is entirely new and unique, novel and useful, it may be eligible for patent protection. The invention must be able to be industrially applied in order to satisfy the requirements of a standard patent. For the purposes of patent law, something that is an invention, or represents an inventive process, is something that was not an obvious thing to do for a person with relevant knowledge and technical experience. IP Australia lists the requirements for patent applications on its website. An intellectual property lawyer or patent attorney will also be able to give advice regarding any potential application.

A patent grants its holder the right to stop other parties from using, manufacturing, or selling their invention in Australia without permission. Patent holders are able to license these rights to other parties in order to commercialise their product. Even if a product you have patented is manufactured by another company outside of Australia, it cannot be sold within Australia without your permission.

There are two types of patents ; standard patents and innovation patents. Standard patents are issued for brand new inventions that are unique, useful and unlike anything that existed previously. Innovation patents were issued for things that represent an innovative and useful improvement but not something that is entirely new or unique. Innovation patents have been phased out with the final date for filing being 25 August 2021. Innovation patents filed prior to this date will continue to have protection.

Australia’s patent system is administered by the peak body for intellectual property, IP Australia. IP Australia processes patent applications and examines inventions to ensure that they meet the strict eligibility criteria required for a patent to be granted.

First, decide which type of patent you require and familiarise yourself with the eligibility requirements. It is recommended that you have your application checked by an intellectual property lawyer or patent attorney before sending it off. Many applications fail because they do not meet the formality or eligibility requirements. Due to the expensive and lengthy nature of patent applications (they can take anywhere from 6 months to several years for a standard patent), it is well worth the cost of having a lawyer ensure your application is ready before lodging it.

Once your application has been processed by IP Australia, you will need to request an examination. Patents are not enforceable until an examination has taken place.

Your rights to intellectual property may be specified in your employment contract. Most employment contracts state that intellectual property developed during the course of work duties belongs to the employer. If you are unsure of your rights to an invention, an intellectual property lawyer will be able to provide you with advice about your rights.