Understanding Different Types Of Australian Patents

When it comes to patents, there is a lot to learn. While it can be overwhelming getting to the bottom of how patents work, understanding the types of patents that exist in Australia and how they relate to protecting your valuable inventions is vital. 

At IP Guardian, we provide cost-effective, professional advice and support regarding all areas of intellectual property. Offering in-depth guidance for every stage of securing a patent, we are passionate about helping Australian inventors protect and profit from their inventions. 

For a stress-free and successful outcome on your application, the team at IP Guardian is here to help. 

Patents In Australia

A form of intellectual property, an Australian patent is a right given from a recognised government authority that allows the inventor exclusive rights over their invention. This means they can prevent others from copying it for a set period of time. 

In exchange for these exclusive rights, you are required to submit to the government a document that will become public. In this document, you must describe the invention in detail, provide a means for reproducing the invention and outline how it is different or better than other inventions already in existence.

For a more in-depth look at what exactly patents are and what can be patented in Australia, please see our blog on this topic.  

Australian Patent Types 

In Australia, there are just two different types of enforceable patents - standard patents and innovation patents. Most inventions and innovations can be patented so long as they meet some key criteria. Namely, they must be:

Novel - this means it must be a new idea that has not been patented previously

Useful - it should be something that can be made or used in a specific industry

Inventive - Not only should it be a new idea, but it must also be different to what already exists

Suitable Subject Matter - Known as the ‘manner of manufacture’ it must belong to the useful arts and provide a material advantage to the economy 

Exceptions to this would be if you are hoping to protect how something looks you do not apply for a patent. Though sometimes referred to as a type of design patent, this falls under design rights and is a separate application. 

Similarly, if you've developed a new plant variety you need to apply for plant breeder's rights. We’ll explain this more clearly later. 

Standard Patents

Standard patents offer the standard form of protection for inventions available under Australian law. Standard patents cover entirely new inventions that incorporate an ‘inventive step’ in their development. Most discoveries can be covered by a standard patent so long as they meet the formal criteria for patent application. 

Innovation Patents

Innovation patents cover what is sometimes deemed as ‘lower-level’ inventions that a standard patent is unsuited for. Introduced in 2001 and designed to protect inventions by small to medium enterprises (SMEs) it allowed these SMEs to quickly develop new inventions and continue to develop them with innovations without forgoing protection. 

Essentially, innovation patents allowed inventors to work on new and better ways of using existing inventions. Phased out in 2021, these patents are still valid for those that hold them but no new innovation patents can be filed except in certain limited circumstances.  

Provisional Patents

While not enforceable, a provisional patent application acts as a placeholder for inventors. This placeholder allows inventors more time to decide whether they wish to continue with the formal patenting process. 

Critically, a provisional patent does not offer any protection for your invention and should you not pursue a proper patent within 12 months, your provisional application will lapse. 

The benefit of filing a provisional application is that you can then go public with, make and sell your invention without negatively impacting your rights to a patent late down the track. Without this filing, any public disclosure of your invention could see you forfeit your rights to a patent in future as per IP Australia.

Comparing Australian Patent Types

For further clarification on Australian patent types, below is a comparison of each, including provisional patents, outlining their key differences. 

Types Of Patent Claims

Within your patent, you will have what are known as claims. Each patent can have different claims, but their role remains the same - to define the boundary of the patent and what it protects. More simply, it details the invention that is protected by the patent that is given to the owner. 

Patent claims are usually a collection of statements in legal terms that outline the technical details of an invention. The claim defines the invention and the protection being sought and is of two types, independent and dependent. 

Independent claims cover a claim for a thing, the method for making a thing or the method for how the thing will be used. 

Dependent claims are much narrower in scope as they are limited by earlier independent claims. They are used to refine the details of independent claims. 

Claims are incredibly complex and nuanced to write, it is for this reason that a patent attorney should be engaged to assist with this aspect of patents. Improperly prepared patent claims can see you left with inadequate or no protection of your invention. 

Likewise, if you do not understand the claims of an existing patent you can quickly get into trouble and potentially infringe on another's rights.    

Why Do Other Countries Have More Patent Types? 

Every country handles its intellectual property classifications differently. While some countries such as the United States have four main types of patents (utility or non provisional, provisional, design and plant) Australia divides some components of IP into separate legal entities. 

For example and as mentioned earlier, the development of distinct and new plant varieties are not covered by patents in Australia, but are in the United States. Here they are protected by the application for Plant Breeder's Rights (PBR). 

The process is similar to applying for a patent with fees and timeframes also applied. However, they have separate legalities regarding usage, protection of rights and enforcement which are covered under the Plant Breeder’s Rights Act 1994.  

Will A Patent Search Find All Types Of Patents?

IP Australia, the governing body for intellectual property in Australia, provides a patent search tool on their website. Known as AusPat, this tool will search for both types of Australian patents without any additional steps being taken.  

Designed to search using several other criteria, you can be assured that no matter the type of patent you apply for or the type you are searching for in Australia, it can be found in this database. Searching can be tricky though and if you need certainty in your results you should have a patent attorney perform a search for you.

Is My Patent Recognised Overseas? 

No, unfortunately, there is no such thing as a global patent. Should you wish to pursue protection overseas you will need to do this usually through the Patent Cooperation Treaty or PCT. This allows you to file a single application with the filing date being recognised by multiple member countries without the need for individual applications at the time of filing.  It is still necessary to file individual applications in each country that you want a patent in at the expiry of the PCT application.

As overseas inventors can also apply for Australian patents, keep in mind that another inventor could have registered a patent for the same idea in Australia before you did. This is why detailed patent searches have to be performed before you apply for a patent, whether in Australia or overseas.  

 Where To Find Help 

Applying for a patent or even knowing whether this is the right move can be a costly and time-consuming process. There are swathes of technical jargon to wade through and mistakes on applications can see them quickly rejected. 

At IP Guardian, our skilled patent and trademark attorneys are both highly qualified and experienced in every step of the process. We can help you determine whether a patent is right for you and support you to prepare and submit an accurate application. 

Book your obligation-free consultation today on 02 9071 0130.

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Barry Meskin

Registered Patent and Trade Mark Attorney with significant experience obtaining all forms of registered intellectual property. I hold a Bachelor of Science in Engineering, a Masters of Business Administration and a Masters of Intellectual Property. I’m passionate about showing my clients how they can protect their brands through trademark registrations.