WHAT IS A PATENT?
A patent is an intellectual property right issued by IP Australia (Intellectual Property Australia) an instrument of the (Australian) Federal Government. It can be legally enforced and gives you exclusive rights to your invention in Australia. You can obtain patent protection overseas as well.”
A patent gives a benefit to an inventor and a benefit to the public and thus:
- Gives an inventor the right to exclude others from making, using or selling the patented invention for 20 years from the date of filing of the application; and
- Makes available to the public a set of illustrated instructions that explain how the invention works. Anyone is free to use these teachings for inspiration and reference in making new contributions so long as the results do not infringe the patent while it is in force.
One cannot have the first benefit without offering the second. In order to get a benefit (the right to exclude others) the inventor has to give a benefit (teaching others how the invention works).
A patent grants only the right to exclude others. A patent does not grant an absolute right to make or sell the invention. Other impediments, such as someone else’s patent that covers a key component of the invention, may stand in the way.
The grant of a patent is no guarantee of its validity – at any time during its life a patent can be open to attack.
WHAT IS “PATENTABLE”?
To be patentable, an invention must:
- be new
- involve an inventive step
- be capable of industrial application
In general, any device, substance, method or process that is new, inventive and useful can be patented. Abstract ideas, discoveries and scientific or mathematic theories cannot be patented. Software can be patented in Australia and the United States and possibly in the European Patent Office in certain circumstances. In Australia, gene sequences developed for biomedical purposes by research laboratories have been patented.
An invention is not “new” unless:
- It has never been described in a publication anywhere in the world; or
- It has never been made public in any way.
An invention is “useful” if it accomplishes its intended purpose – that is, if it works. Most inventions (except perpetual motion machines!) pass this test without difficulty.
Patents Protect Inventions
An invention involves an inventive step if the differences between the invention and the earlier work of others are such that the invention would not have been obvious to a person with a good knowledge and experience of that subject.
To be capable of industrial application an invention must be able to be made or used in some kind of industry (i.e. any useful practical activity) and an invention must therefore be in the practical form of a
Patent protection is not automatic. You have to file an application so that IP Australia can assess whether your invention can be patented. The application describes your invention in technical and legal terms and must be drafted carefully to make sure you get effective patent rights.
You can choose to patent your invention in Australia only or on an international level.
In Australia there is also a relatively fast, and inexpensive option of applying for an innovation patent. Innovation patents have a shorter life of 8 years.
Your Lawyer can guide you through the right intellectual property safeguards for all of your business IP assets.
Etienne Lawyers are happy to offer an initial Free phone consultation to guide you towards safeguarding your IP anywhere in Australia or the World.
Just Call today on 02 8845 2400, or send us your query