A patent is granted for an invention being the embodiment of an idea in a product, method or process. Patents are not granted for ideas per se, but rather are concerned with the practical application of ideas.
Australia has two types of patents that can be granted for inventions:
Both must comply with requirements set out in the Patents Act, such as:
- the invention must be of a type that is capable of protection by a patent (“manner of manufacture”)
- the invention is new
- the invention has an inventive step (standard patent)
- the invention has an innovative step (innovation patent)
- the complete specification of the patent fully describes the invention
- the scope of protection for the invention is defined in one or more claims of the complete specification.
Human beings, and the biological processes for their generation, are not patentable inventions. In addition, an innovation patent cannot be obtained for plants and animals, and the biological processes for their generation. However, both types of patent may be obtained for a microbiological process or product.
This is by far the most common of the two types of patents. There are about 25 times as many standard patent applications as opposed to innovation patent applications filed in Australia each year.
Key features of the Standard Patent include:
- the applicant has greater flexibility to control the rate of passage of the application through the Patent Office
- delayed publication – 18 months from earliest priority date
- pre-grant examination of the application to afford the applicant a greater assurance of the presumption of validity of a granted patent
- no limit to number of claims – no restrictions on ability to cover different aspects of invention in the one patent
- greater flexibility to file divisional applications
- fixed pre-grant period during which third parties can oppose a standard patent application before the Patent Office
- no renewal fees payable until 5 years after the filing date of the complete application
- 20 year maximum patent term
- ability to file applications for patents of addition
Standard Patent Flow Chart
This flow chart illustrates the potential path to follow through the Standard Patent process.
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Three key features of the Innovation Patent are:
- a lower level test for “innovativeness” that must be met
- grant of an Innovation Patent occurs without examination of the application by the Australian Patent Office
- 8 year maximum patent term.
These features make the Innovation Patent particularly suited to protect an invention:
- that is different from the state-of-the-art, in the relevant technology or industry, in a relatively small way and would not meet the higher “inventive step” test required for a standard patent
- for which examination on validity is not required prior to the grant of a patent – this also provides a saving on pre-grant costs
- that will have a relatively short commercial life.
Whilst an Innovation Patent can be granted quite quickly after the complete application is filed – within 1 month is not uncommon – it is not possible to enforce rights under an Innovation Patent until the Australian Patent Office examines it. If the Innovation Patent is approved during the examination process, the Innovation Patent is certified. It is then referred to as a “Certified Innovation Patent”.
Innovation Patent Flow Chart
This flow chart illustrates the potential path to follow through the Innovation Patent process.
Download PDF Version (67kb)