Patents are one of the least understood forms of intellectual property. There are misconceptions that patents are only for complex or revolutionary items like the light bulb. While the light bulb and many complex contraptions have been protected by patents over the years, patents have much broader applicability.
A patent is a right that protects the functionality of a product, process or system (in contrast to the look/appearance or name of a product, process or system). Anything new, useful and involving some ingenuity or exercise of inventive skill may be patentable, including items, software, microorganisms and pharmaceuticals. A patent may be used to exclude others from exploiting an invention but can also be used to license the invention to third parties.
The invention must not be publicly known, anywhere in the world.
You should conduct searching to ensure that your invention is not known previously. Great technology known in Japan, for example, cannot be patented here in Australia, even if you were the first to bring it here, and even if you were not previously aware of its presence in Japan.
Resources for conducting patent searches include:
This also means that you must be careful of your own publications. Do not put your great idea on the Internet or social media before protecting it. In Australia and the United States there is a 12-month grace period for your own disclosure, but in most other countries, self-publication may prevent you from obtaining patent rights.
The difference between your invention and what was previously known must be non-obvious, and generally be associated with a benefit or advantage. It is a common misconception that an invention needs to be complex or a breakthrough in order to be inventive. Inventions having simple or small improvements can be patentable, provided that the improvements result in significant advantages.
Similarly, for inventions that comprise a combination of elements, the requirement of inventive step may be met, even if each single item is obvious when considered individually. Innovation patents, which are currently being phased out, have a lower inventive threshold.
When applying for a patent in Australia, it is necessary to submit a description of the invention (known as a “patent specification”) with the Patent Office. The invention should be described in sufficient detail in the patent specification to enable a “person skilled in the art” to put the invention into effect, without the need to exercise further inventive skill or ingenuity.
The filing of the patent specification with the Patent Office establishes a “priority date”. Early establishment of a priority date is important as it is the date used to assess the novelty and inventiveness or innovativeness of the invention.
As the patent specification defines your invention, and the scope of monopoly sought, we strongly advise having the patent specification professionally prepared, and would be happy to assist with this.
Any public disclosure or commercial use of a patented invention after the priority date will not prejudice the validity of a patent ultimately granted on a patent application. Therefore, once a patent application has been filed, the invention as described in the specification (filed with the application) may be freely advertised, sold or otherwise disclosed to the public.
As there are a lot of factors to consider, we strongly suggest utilizing a registered patent attorney to assist with the filing of a patent application. At Kings IP, we offer a no-cost, no-obligation initial consultation to discuss your patent options and provide initial advice. Get in touch with our team today to discuss patenting needs.
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