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How to get a patent in Australia

Close-up of hands holding a lightbulb.
Are you working on the next big invention?

Unsplash CC: Riccardo Annandale

In April we celebrate the work of inventors and innovators around the world and the intellectual property they create. Australia Plus spoke to a patent attorney to find out how you get a patent in Australia.

Are you the sort of person who likes to make things? Perhaps you're a fully-fledged inventor working on the next big thing. Have you considered getting a patent for your creation?

"Patents are used by inventors to protect their inventions" says Dr Annabella Newton. An invention can be a new product or a new way of doing something.

Head and shoulders portrait of a businesswoman.
Dr Annabella Newton is a patent attorney at Phillips Ormonde Fitzpatrick.

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Dr Newton is a patent and trade marks attorney at Phillips Ormonde Fitzpatrick, and helps her clients apply for patents in Australia and overseas.

Patents are a type of intellectual property, she says, which is "an umbrella term used for creations of the human mind" and "also a set of legal frameworks that protects intellectual property".

The other main forms of intellectual property in Australia are copyright, designs and trademarks.

A patent gives you a limited monopoly, or a limited period of time in which you have exclusive rights over your invention, in exchange for publishing the details of your invention.

A standard patent is usually 20 years, but in Australia you can also apply for something called an innovation patent, which give you eight years of protection.

"They're there to provide quick, affordable protection for… more incremental innovations," says Dr Newton.

To be granted a patent there are two things you have to show: that your invention is novel, and that you had to take 'an inventive step' to create it.

"If there's nothing else out there that's the same, then it's novel," says Dr Newton.

But showing you've taken an inventive step is trickier to prove because that's more subjective.

In Australia we measure it by looking at your invention from the perspective of someone 'skilled in the art', which means an expert in your particular field.

"So they're an incredibly skilled technician but they don't have an ounce of inventive faculty," says Dr Newton.

"They would look at the closest thing to your invention, and if they would immediately arrive at your invention without any further sort of instruction it's not an invention.

"But if they would have to do any kind of mental gymnastics to get to your invention, then it probably is."

Of course, you can't patent everything. Pure scientific discoveries aren't patentable, neither are ideas or mathematical formulas.

The test is how much human intervention there is, says Dr Newton.

"If you took your new discovery and were able to do something cool with it then that might be patentable."

How do you go about getting a patent in Australia?

The first step, Dr Newton says, is to consult a patent attorney, as the process of applying for a patent is very complex.

You want to ensure what you've got is new, and you also want to make sure that your patent isn't infringing someone else's rights.

"A patent attorney... will be able to give you advice on whether what you've got is worth proceeding with," she says.

If it is they can then help you draft a patent specification: the legal document that defines the parameters of your invention or what you're trying to claim essentially.

"We usually try and draft it in very broad language," says Dr Newton.

A glass containing water, ice and a striped straw.
A drinking glass or an open-ended vessel?

Flickr CC: Julie Jablonski

"So if you've come up with a new type of drinking glass we wouldn't define it as a cylinder to fill with water, we'd define it as an open-ended vessel capable of receiving a fluid."

It's always a balancing act between giving yourself the broadest possible protection under the law so your competitors can't essentially copy you, and claiming more than is fair.

It also depends on how crowded the field is already for your invention.

"Drinking glasses for example, there's already lots out there," says Dr Newton. "I'd very much doubt you'd be able to get a decent patent for a drinking glass."

Once you have your patent specification it's then time to file it with IP Australia, who administer all of the intellectual property rights in Australia.

"The process is actually fairly complex because you have various options for filing your patent," says Dr Newton.

These include the length of the patent you're applying for and the type of application you're making.

You could be making a provisional application which gives you 12 months from the date of filing to decide what you want to do next, but creates your line in the sand for any similar patents that follow yours.

You could be filing a complete application in Australia or what's called a PCT (Patent Cooperation Treaty) application if you also want to patent your invention overseas. You don't need to be a citizen of a particular country to apply for a patent there.

As well as Australia, Dr Newton also helps her clients apply for patents in Europe, the US, India, Japan, Korea, China and Singapore.

"[There are] lots of considerations to factor in but it is really fun as well," she says.

"You're working with wonderful, creative people on fascinating inventions."

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