The patent system allows innovators to claim exclusive rights to their inventions. That’s important, because it means inventors can recoup their expenses in research and development, and it encourages the market to consistently invest in new technologies.
However, not all inventions are patentable. To qualify for patent protection, your invention must meet four key criteria laid out in the Patents Act 1990.
Satisfying these criteria can be complex. Applications are assessed on a case-by-case basis, and determining eligibility requires the help of an experienced patent attorney.
In this article, we’ll discuss the basis of patent eligibility, and help you figure out whether your invention qualifies for patent protection.
Patents protect a broad range of inventions, such as devices, substances, methods and processes. This can include things like:
Certain categories of inventions are not eligible for patent protection in isolation. These include:
There are four major criteria used to determine whether an invention is eligible for patent protection. Each of these contains an incredible amount of nuance and complexity. We recommend speaking with a patent attorney to determine whether your invention satisfies each of the criteria.
As a general framework, patentable inventions must be:
The invention must be novel. This means that prior to your invention being filed, no one else can have done the same thing as you.
This requirement also means your own invention cannot be made public before the date of your application.
In most countries, you lose the right to patent your idea if it is publicly disclosed before the priority date of your patent application. That is, the date on which you file a provisional patent or standard patent application.
There is a 12-month grace period in Australia that allows you to file an application once your idea has been made public.
It’s important to remember that this grace period may not apply in other jurisdictions. If you intend to patent your idea in multiple countries (e.g. if you plan to market or manufacture your product overseas), you may be unable to patent an invention that has been publicly disclosed.
Be cautious about ways in which your invention can be made public. For instance, if you apply for a public grant as part of the development process, some (or all) of your invention may be made publicly available through the grant provider. This is a common problem for creators working with institutions such as universities.
We recommend keeping your invention a secret. You can use agreements such as an NDA to prevent others from sharing your ideas.
The invention must be useful in industry. This criteria is typically based on whether the invention works as intended, and whether it produces some kind of economic benefit. Typically, this is the easiest of the criteria to meet as most inventions will have some kind of usefulness.
Your invention must be different to existing devices, substances, methods and processes, and involve an inventive step over existing devices, substances, methods and processes.
The “inventiveness” of an invention is based on whether the inventive step would have been obvious to a person who is “skilled in the relevant art”. That is, your invention cannot be an obvious development to a skilled, non-inventive worker in the field.
It’s important to work with patent attorneys that are subject matter experts when developing your patent application. The way your invention is documented and presented can make the difference between a patent application being granted or rejected.
The “manner of manufacture” test determines whether an invention is of a suitable subject matter. This typically excludes inventions relating to artistic creations, mathematical models, human beings, and plans or schemes that are purely mental in nature.
Whether an invention is directed to suitable subject matter is determined on a case by case basis. Generally speaking, anything that is a useful art (as opposed to a fine art) is considered a suitable subject matter.
Inventions that relate to fine arts can be protected with other forms of intellectual property, such trade marks, copyright and design rights.
The simplest way to find out if your invention qualifies for patent protection is to speak with a patent attorney.
Patent attorneys are experts in the field. While developing your patent application, your attorney can search existing patent documents to determine whether your idea is new and involves an inventive step.
Searching existing patents is often time consuming and complex. Patents are divided into classes and subclasses. It’s crucial to perform a comprehensive search before lodging an application to allow you to form an appropriate IP management strategy.
Remember that filing a patent application takes time and money, and it requires you to publicly disclose the details of your invention. Therefore, if your application is unsuccessful, it can be a substantial loss to you and your business.
Working with a patent attorney is the best way to prevent this outcome. Your attorney can accurately assess whether an invention is suitable for a patent, and develop an application with the highest likelihood of success.
Patents are the ideal tool for protecting your inventions. Australia’s patent legislation is robust, and it can help you maximise the value of new ideas.
Applying for a patent is complex. Before you begin, contact the attorneys at Kings and determine whether your invention is suitable for patent protection.
Kings is an independent firm based in Brisbane that offers intellectual property services. Our experienced attorneys specialise in patents, trade marks and design registration, so we can help you protect your most precious ideas.
Our team holds dual qualifications and are subject matter experts in a variety of fields. Our qualifications and experience allow us to support patent applications in engineering, technology, pharmaceuticals, biotechnology and beyond.
Contact us for a confidential consultation, or give us a call to find out whether your invention qualifies for patent protection.
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