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No. A patent does not give its owner the right to exploit their invention. Put another way, a patent does not shield you from infringing another person's patent (or other rights).
By way of example, you might obtain a patent for an improved version of a competitor's product but not be allowed to make it because that would infringe the competitor's patent on their original product. In this case neither you nor your competitor is allowed to make the improved version without permission from the other.
They are infringing your patent and you have the legal right to stop them.
If you suspect an infringement, you should seek the advice of a patent attorney immediately. In particular, seek advice before approaching or communicating your infringement concerns to a suspected infringer. Some types of communication can jeopardise the possibility of successful legal action against an infringer, or may even leave you open to being sued yourself, particularly if your suspicions of infringement turn out to be unfounded.
A patent attorney can advise you whether your infringement concerns are well-founded and recommend the next steps you should take.
There are two different types of patents available in Australia. An Australian standard patent has a maximum term of 20 years. To qualify, an invention must be 'new' and 'inventive'. An Australian innovation patent has a maximum term of eight years, and is limited to five claims. To qualify, an invention must be 'new' and 'innovative'.
In the normal course of events, obtaining an Australian standard patent takes about five years. Why does it take so long?
A provisional patent application is often the first application filed in respect of an invention. Provisional applications lapse 12 months after filing, so if you want to continue seeking patent protection, you must file a complete application within this period. The provisional application is not published unless a related complete application is filed.
To qualify for a standard patent a product or process must be 'inventive'.
The inventiveness threshold varies from country to country. In Australia it requires a variation over selected publicly known information which is non-obvious from the point of view of the 'skilled person'.
Innovation patents are intended to cover 'workshop improvements'. Inventiveness is not required. An innovation patent can validly cover an obvious combination of well-known features.
To qualify for an innovation patent a product or process must be 'innovative'. This requires a variation over publicly known products and processes which 'makes a substantial contribution to the working of the [product or process]'. This is a very low threshold. 'Substantial' simply means 'real or of substance'.
Filing of an initial patent application for an invention sets a 'priority date'. This date is used when determining whether the invention qualifies for a patent. Often a provisional patent application is filed to establish a priority date.
Yes, we often recommend an informal scoping search as a first step towards patent protection.
The scoping search aims to locate prior publications relevant to the patentability of your invention. This provides an indication of the likelihood of obtaining patent protection and the potential scope of protection, as well as providing guidance for patent drafting.
Visit patent searches for more information.
There is no such thing as a worldwide patent. Virtually every country in the world has a patent system, and you can file separate national patent applications in the countries of interest.
-> More on how to patent internationally.
Ultimately separate national patent applications in the countries of interest will be required, although the process can be started with a single Australian patent application.
-> More on how to patent internationally.
If you have filed a patent application, you can use terms such as 'patent application filed' and 'patent pending'. Only when you have actually been granted a patent can you use terms such as 'patented' or 'Australian patent number xxxxxx'.
-> More on product marking.