WHAT IS A PATENT?
A patent is an intellectual property right. It 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 get 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. It 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, you can patent any
- device
- substance
- method or
- process
that is new, inventive and useful.
You can patent software in Australia and the United States. Under certain circumstances you can patent software in the European Patent Office. Patents in Australia include gene sequences developed for biomedical purposes by research laboratories.
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. The inventive step is not obvious to a person with a good knowledge and experience of the subject.
To be capable of industrial application an invention you must be able to
- make or
- use it in some kind of industry (i.e. any useful practical activity)
An invention must therefore be in the practical form of a
- device
- product
- apparatus
- industrial
process or - method of operation.
Patent protection is not automatic. You must file an application with IP Australia. They will then assess if your invention is patentable. The application must describe your invention in technical and legal terms. You must take care to draft the apllication carefully. Otherwise you may not 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 patent. This option is 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