The 5 important requirements for an invention to be patentable

Not every new idea or product is eligible for patent protection. To obtain a valid patent in Australia, an invention must satisfy a number of legal requirements before IP Australia will grant protection.

Understanding these requirements early is important. There are also common mistakes that can reduce or even destroy your ability to obtain patent protection, including:

• Filing a patent too soon
• Publicly disclosing an invention
• Misunderstanding what the patent system actually protects

Let's go through the five key requirements for patentability in Australia. If you need assistance with anything related to patents or intellectual property, get in touch with IP Guardian.

1. Manner of Manufacture

Before an invention can be patented in Australia, it must qualify as a "manner of manufacture" under Australian patent law. The invention must involve something more than a mere idea or discovery. It generally needs to create a practical, useful result through human action or technology.

Some subject matter that may not be patentable include:

• Abstract ideas or schemes
• Mathematical methods on their own
• Mere discoveries of natural phenomena
• Certain genetic material
• Anything considered contrary to public policy or law

This requirement can become more complex in areas such as software, biotechnology, and AI-related inventions.

2. Novelty

To be patentable, an invention must be new.

This means it must not have been publicly disclosed anywhere in the world before the patent application is filed. Public disclosure can include:

• Online publications
• Product demonstrations
• Sales activity
• Public use
• Social media posts
• Discussions without confidentiality protections

If the invention has already entered the public domain, it may no longer be considered novel.

Australia does provide a 12-month grace period under section 24 of the Patents Act 1990 (Cth) in certain circumstances. However, relying on a grace period can create risks, particularly if overseas protection is later sought.

For this reason, inventors should speak with a patent attorney before publicly disclosing an invention.

3. Inventive Step

An invention must also involve an inventive step.

This means the invention cannot be an obvious improvement or routine variation of existing technology to someone skilled in the relevant field. Simply combining known ideas in an expected way is unlikely to satisfy this requirement.

Inventive step is often one of the most heavily examined parts of a patent examination and can significantly affect the strength and enforceability of a patent.

4. Utility

A patentable invention must be useful.

In Australia, this means the invention must achieve the result described in the patent specification and provide a practical benefit or useful application.

Theoretical ideas or inventions that do not actually work are unlikely to satisfy the utility requirement.

5. Enablement and Full Disclosure

A patent application must explain the invention clearly enough that a skilled person could understand how to make and use it.

This usually includes:

• Clear written descriptions
• Technical explanations
• Supporting drawings where relevant
• Sufficient information to reproduce the invention

Poorly prepared patent specifications can lead to examination issues or weaken the enforceability of a patent later on.

What Types of Inventions Can Be Patented?

Patentable subject matter in Australia may include:

• Processes
• Machines
• Systems
• Apparatuses
• Chemical compounds or compositions
• Manufacturing methods
• Improvements to existing technologies
• Some forms of computer-implemented inventions

Plant varieties are generally protected separately under the Plant Breeder's Rights Act 1994 (Cth) rather than through the standard patent system.

It is also worth noting that Australia's innovation patent system, which previously offered a lower-threshold, shorter-term form of protection, was abolished, with new applications no longer accepted after 26 August 2021. Inventors previously considering an innovation patent should now focus on standard patent protection.

Patentability Depends on More Than Just Having a “New Idea”

Even strong commercial ideas may face challenges around patentable subject matter, inventive step, disclosure requirements or prior art.

Obtaining meaningful patent protection often depends on filing strategy, timing and how the patent specification is prepared.

Speaking with a registered patent attorney early can help identify risks, protect valuable rights and improve the strength of a future patent application.

Speak With a Patent Attorney

If you are developing a new product, system, or technology and want to understand whether it may be patentable in Australia, IP Guardian can help.

Our registered patent attorneys advise inventors, startups, and established businesses on patentability, filing strategies, and intellectual property protection in Australia and internationally.

Mike Biagio

Mike Biagio has had previous experience in research and development and project engineering before becoming a patent attorney. Mike has been involved in specialist intellectual property law since 2001 in a variety of countries including South Africa, New Zealand and Australia, and has more than 21 years of experience as a patent attorney in obtaining patents and designs around the world for his clients.

Mike has been a lecturer and regular mentor at UNSW, University of Wollongong, and University of Sydney for a number of years, and has advised start-ups at incubators/accelerators on intellectual property and ideation.