If you’ve been following along with our blogs regarding intellectual property, you’ll know that so far we have covered copyright and trademarks in quite a bit of detail. But what about patents? Patents are another important form of intellectual property and something that any inventor should be well acquainted with.
In this guide, we’ll take a look at what patents are exactly, what it means if something is patented, patent infringement and more. No matter what your queries may be concerning patents, we’re here to answer them all.
A patent is a form of intellectual property that is linked to the protection of a new invention. It, for a limited period, stops others from making, using or selling your invention or parts of the invention for their gain. An invention could be a device, substance, method or process.
To better define patents - a patent grants the patent holder exclusive rights to a process, design or invention. It helps to protect their valuable ideas from being copied or stolen and gives them legal recourse to pursue those that attempt to do this.
Patented, meaning ‘to lay open’ in its original Latin form, involves a full disclosure, in comprehensive detail, of every aspect of the invention and permits these details to be published. You must quite literally lay the details out for anyone to see.
This may seem counterintuitive since you are aiming to protect your invention and secrecy would work better, however, this information is necessary to prove your ownership. It also stops others from claiming your work as their own or incidentally inventing something similar and passing it off as new.
Patenting your idea gives you a monopoly in the applicable market, the freedom to licence your idea to someone else for manufacturing purposes and the right to legally control who can use, sell or import your invention in Australia. In short, it protects your valuable invention and ensures you are the one to benefit from it financially.
No, there are no rules or laws in place regarding enforcing patent applications. However, unlike unregistered trademarks which still offer a level of protection without formal ownership in place, the lack of a patent leaves you completely open to the theft of your invention.
Without a patent, anyone can manufacture, sell, import or use your invention and claim it as their own. They could even submit their own patent application for your invention and potentially try gain legal ownership of it. While you may be able to contest this, it is time intensive, costly and requires you to keep records and prepare evidence.
So why is it so important to understand patents and the laws surrounding them? Well, quite simply it is because if you don’t you could end up in some serious hot water for breaching these laws.
While the everyday Australian may not come across situations where patents are regularly involved, business owners can do so daily.
For instance, did you know that if you sell a product supplied by a third party that has breached patent laws, you could be held accountable and prosecuted? It doesn’t matter if you do not know of the patent or infringing behaviour, you were indirectly involved in perpetuating it.
Penalties for flouting patent laws can include having to pay damages or compensation to the patent holder, covering both your and the patent holder's legal fees, hefty fines and even the potential for jail time.
We’ll discuss how to avoid these types of outcomes further on.
There is lengthy and involved legislation surrounding patents in Australia. These laws govern what can be patented, the process of creating a patent, the protection of patents and more. This is all outlined in the Patents Act 1990.
The Act attempts to balance the interests of both inventors and the public, providing limited legal rights for inventions in exchange for delivering technical progression to the community.
As per the Act itself:
“The object of this Act is to provide a patent system in Australia that promotes economic well-being through technological innovation and the transfer and dissemination of technology. In doing so, the patent system balances over time the interests of producers, owners and users of technology and the public.”
The Act protects against third parties manufacturing, importing, using and/or selling a patented invention within Australia, but does not extend to overseas protection of inventions. The government body IP Australia handles all intellectual property concerns within Australia, including patents.
To obtain protection for your invention in overseas markets, you must file an application with the patent office within the country or jurisdiction in question. A similar, if not more involved process for checking and approving the patent request will apply.
Patents can be approved for a vast range of inventions and processes including:
You cannot acquire a patent for human beings or the biological processes behind their creation, any artistic creations, mathematical models or things that are reliant on mental processes such as plans or schemes. However, these are general guidelines only and may depend on the exact details of your invention. We offer a free consultation to help you determine whether your invention may be patentable.
These things may be able to be protected under other types of IP legislation such as copyright or trademark.
If you believe you have a unique process, product or invention you may wish to take steps to protect this via a patent application. The process for applying for a patent is as follows:
Not all things can be patented, on occasion, another form of intellectual property protection may be better suited such as a trademark. To help decide if you have something that can be patented it must meet some key criteria. It must be:
If your invention or product does not meet these criteria you’ll need to go back to the drawing board or pursue other forms of IP protection. Speak to one of our patent attorneys if you are unsure.
To ensure you are not accidentally engaging in patent infringement and copying an idea that is already patented, you should perform a patent search. This is easily done via IP Australia’s patent search tool.
You may also like to pursue a search on WIPO’s international patent database.
Found a similar invention and think your chances of securing a patent are down the drain? Not necessarily, patents can be awarded to similar items so long as there are enough differences to differentiate them. You should look to see that your invention has at least one or more points of difference
Lodging a patent application takes time and has attached costs. You can expect to wait anywhere from 6 months to several years for your patent to be properly approved and registered. Government fees start from $110 for a provisional patent and into the thousands for full protection.
Why does it cost so much and take so long? This is due to the in-depth checks performed to ensure your patent meets all the qualifying criteria.
The general process of an application is shown in IP Australia’s application process. Be prepared to pay the applicable fees to finalise your submission. Preparing a patent application is complex and most self filed applications are invalid. Therefore the use of a patent attorney is critical to ensure your patent application has the best chance of success.
Your application will be examined and checked in detail before a decision is made. If there are any concerns you’ll be contacted to resolve these where possible. Once your application is approved you will be provided with details regarding your rights to the patent.
If your application is rejected, this will be explained in an examination report.
Patent pending is a term that is used to denote patent applications that are currently filed and under review but that have not yet been granted. Patent pending does not grant the applicant any rights over the invention in question, it simply shows potential competitors that a patent has been submitted. This can deter third parties from trying to patent the same idea or risking patent infringement should the patent be approved.
Patent infringement occurs when a third party violates the patent holder's rights concerning the manufacture, distribution or sale of a patented item. In short, it means someone has profited off an invention without permission from the patent owner.
Any individual who imports, sells, makes or uses a patented invention without securing a licence from the patent owner is engaging in patent infringement. As discussed earlier, this can have far-reaching financial and legal consequences and damage the reputation of everyone involved.
There is no formal body for policing patent infringement or any other kind of IP infringement. It remains the responsibility of the patent holder to perform their own checks for infringement and to initiate corrective action. This is normally done by way of a letter of demand from your attorney and then by application to the court if needed.
As a patent holder, there is not a lot you can do to stop others from infringing on your patent. Once you hold a patent it is more about stopping these actions whenever they occur, consistent action in relation to patent infringement is one of the best deterrents.
A third party is much less likely to infringe upon your patent when they know swift legal action and harsh consequences will apply. Therefore marking your invention patent pending or including the patent number is useful in showing people you have a patent and putting them on notice.
How do you ensure you do not accidentally engage in infringing behaviour?
Do not manufacture, import, use or sell an invention that you do not have the licensing rights to distribute. Be mindful of receiving these goods via another supplier and always ask them for proof of their licensing rights over this patent. You can also request a freedom to operate search from a patent attorney which can help ensure you don’t infringe any patents.
When it comes to your own inventions, follow the steps outlined above for how to patent an invention and be sure to perform thorough checks of existing patents. Ignorance is not a viable defence when it comes to patent infringement as there are ways to check the existence of current patents.
While you do not have to engage professional help from a patent attorney, it can serve to make the entire process much easier. A patent attorney can perform all the necessary checks and reviews the suitability of your patent prior to an application being lodged.
This can save you significant time and money by eliminating rejections and hours spent trawling through existing patents.
Should you already have an existing patent and have discovered infringing behaviour that needs legal expertise, a patent attorney can assist with this also.
We understand you feel protective of your idea, after all, why else would you pursue a patent? However, you do not need to fear your patent attorney stealing your idea. All patent attorneys must abide by a code of conduct and a code of ethics.
These codes prohibit patent attorneys from acting deceitfully or fraudulently as well as preventing them from trying to acquire rights over IP when there’s a conflict of interest. This means that once you engage your help, they are not able to lodge their own patent application as it would be a conflict of interest.
At IP Guardian, we understand patent definition in every nuanced detail. Our team of highly skilled patent and trademark attorneys have years of experience supporting inventors to protect their ideas legally and defend against infringing behaviour.
We are dedicated to protecting the inventions of Australian businesses and everyday Australians both here and overseas. Should you need support and guidance lodging patent applications internationally, we can assist with this too.
Our fixed-fee options are available across several areas of IP-related services and aim to make it more affordable to obtain the professional advice you need to secure your patent. For a free consultation regarding your patent, contact our office today at 02 9071 0130.
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.
I found them online and initially I was bit hesitant to talk to them about my problem but when I spoke to Barry, I felt more comfortable, and he gave me all the information and advice I wanted without even thinking that I am going to give him business or not. Finally, I went with them, and they made the entire process so smooth and easy for me. john was keeping us updated with each step he was doing. I would recommend these guys for any patent or trademark related service.
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IP Guardian helps protect words, symbols, letters, numbers, names, signatures, phrases, sounds, shapes and smells. Yes, I said smells.
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