In part 1 of our series on Australian intellectual property (IP), we look at how you can protect your idea or product by applying for a patent.
Many start-up businesses are built from the practical application of a bright idea. These ideas can grow into highly successful physical or virtual products, so their commercial value is worth protecting. A well-structured patent can be the key to safeguarding them from copycats.
What is a patent?
A patent is a legally enforceable monopoly that protects an invention. “It provides a time-limited period where the patentee can use the invention exclusively,” explains Victor Portelli, General Manager of Patents at IP Australia.
Patents can be granted for new devices, substances, methods or processes. “They can’t be granted for an idea alone but may be granted for the practical application of that idea. Regardless of whether a product is a tangible article or a virtual product, the same legislative requirements of the Patent Act apply.”
Selecting a patent
There are two types of patents – innovation and standard. The innovation patent is for inventions that have a short commercial life or that offer small advances over existing technology. They usually take a couple of months to grant, cost up to $280 to file the application (plus an annual fee) and are valid for eight years.
A standard patent provides longer protection for inventions that have a longer development and commercial cycle. “They are subject to substantive examination prior to granting,” says Portelli. “The general timeframe for a standard patent from application to grant is around three to five years. They have a high criteria for inventiveness and last up to 20 years.” The cost of a standard patent is up to $470 to file the application and annual renewal fees apply. The fee for examination is $490.
Patents granted in Australia are only valid within the local market. If you plan to operate beyond Australia, you can apply for patent protection within specific markets or you can apply ?in Australia, under the Patent Cooperation Treaty if your intention is to seek protection overseas.
Applying for a patent can be a time-consuming process. It involves completing a specification document that requires not only a description of your invention, but also a set of claims that define the invention you are seeking to protect. “You can apply for a patent on your own; however, patenting is a complex area of law and IP Australia strongly advices applicants to consult the services of a patent attorney to ensure they obtain advice that is appropriate to their specific needs,” says Portelli.
A patent application is closely examined but its acceptance does not necessarily mean the patent will be granted. “Third parties have an opportunity to oppose the grant of a patent,” says Portelli, adding that the most common reason for opposition is that an invention is not new or may not be considered sufficiently inventive.
Is getting a patent worthwhile?
If you have developed a new product or process, a patent should be part of your business strategy. “If the potential for commercial returns outweighs the time, effort and money required to get and maintain a patent, then it should be considered,” says Portelli. “If your invention has been kept a secret to this point, considering a patent is strongly recommended.”
Protection of your invention starts as soon as you file a patent application, and Portelli says that a provisional application can be sought while you determine which form of patent is most suitable for you. “Filing a provisional application is inexpensive and gives the applicant 12 months to consider the commercial worth of their invention and to resolve issues such as finance and licensing.”
Protecting your property
A patent should protect your intellectual property and also act as a deterrent for people who may be tempted to take your idea for themselves. If your patent is being breached, the first step is to seek legal advice regarding the circumstances and, where appropriate, send a cease-and-desist letter to the infringer. Further legal action can also be taken and a court may order an interim injunction that forces an alleged infringement to stop, pending the outcome of a trial.
“If it is suspected that IP rights are being infringed, we recommend that you obtain professional advice,” says Portelli. “Effective enforcement of IP rights is necessary to maintain their value and to retain the ability to attract commercial value.”