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Photo of business people discussing registering a patent.

The Patents Act 1990 (Cth) is the legislation that governs patents in Australia.

While a registered design safeguards the visual appearance of your product, a patent protects a method or process, a device, or a substance. To be eligible for registration, patents must constitute novel and unique inventions.

Inventors of patentable creations should refrain from disclosing their innovations to others until they have filed a patent application with IP Australia.

Discussing an invention without adequate protection, such as through a deed of confidentiality, can provide grounds for a court to declare a patent invalid. Therefore, arranging a consultation with a patent attorney before sharing your concept with anyone is essential.

Patents fall within a highly specialized field where registered patent attorneys guide inventors. Intellectual property lawyers typically limit their assistance to copyright, trade mark, and circuit layout rights.

Patent attorneys possess specialised credentials in patents and usually hold engineering, science, or medicine degrees.

It is worth noting that patent attorneys cannot represent you in a court or tribunal, as they are not technically classified as legal practitioners unless, of course, they also possess a law degree, are admitted as lawyers, and hold a practising certificate enabling them to offer legal counsel, a situation that is not uncommon.

What Can and Cannot be Patented in Australia

Patents can be obtained for new and inventive machinery, hardware, computer circuits, medicines, biological inventions, and more. Certain subject matter is explicitly excluded from patent protection in Australia, including human beings, biological processes for their generation, and methods of medical treatment of human beings. Additionally, business methods and pure mathematical methods are generally not patentable unless they have a specific technical application.

Two distinct types of patents exist, namely, Innovation Patents and Standard Patents.

Innovation Patents

IP Australia phased out innovation patents in 2022. While registering innovations with IP Australia is no longer possible, previously registered innovation patents remain enforceable throughout their eight-year registration period.

An innovation patent involves fewer formalities and costs compared to a standard patent. Its primary purpose is to encourage innovation without imposing the stringent requirements of a standard patent.

An innovation patent protects innovative advancements within existing technology, in contrast to the inventive step required for a standard patent. Consequently, an innovation need not be entirely novel to qualify for protection.

Standard Patents

Standard patents protect for 20 years. To obtain this patent, your invention must have commercial utility and value. For instance, a new robotic machine designed for installing house roof tiles will likely satisfy all the patentability criteria necessary for patent protection.

In the realm of software, patenting becomes a complex matter. Many critics argue that Australian courts should be more precise in determining what software can be patented and what cannot. Generally speaking, software programs are not patentable in Australia. A program must yield a technical step or a tangible outcome to be eligible for software patenting in Australia.

For example, word processing software is unlikely to qualify for a patent in Australia, nor will software that automates a business process. However, a new software program integrated into a welding machine may be eligible for patent protection.

Standard Patent Requirements

Several essential requirements must be met to obtain a Standard Patent in Australia. These requirements are outlined in the Patents Act 1990 (Cth) and the regulations.

Here are the main criteria for a Standard Patent in Australia:

Novelty: Your invention must be novel, which means it must be new and not publicly disclosed anywhere in the world before the priority date of your patent application. Prior art searches are typically conducted to determine novelty.

Inventive Step: Your invention must involve an inventive step, meaning it must not be obvious to someone skilled in the relevant technology field. In other words, it should represent a non-obvious advancement beyond the existing state of the art.

Utility: Your invention must have a practical utility or industrial application. It should be capable of being made or used in some form of industry.

It’s essential to consult with a registered patent attorney or agent when preparing and filing a Standard Patent application in Australia to ensure that you meet all the requirements and navigate the process effectively.

Additionally, the patent examination process in Australia involves substantive examination, during which the patent office will assess whether your invention meets these requirements.