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Email: mail@wadesonIP.com.au

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Melbourne Victoria 3000
Australia

 

Patent FAQs

What is a patent?

What is the value of a patent?

How do you obtain a patent?

Does having a patent ensure I can make, use and sell my invention?

What if someone makes, uses or sells my patented invention?

What are the types of patent protection in Australia?

How long does it take for a patent to be granted in Australia?

What is the difference between a 'provisional patent application' and a 'complete patent application'?

What do patents cover? / How much of a change avoids infringement of a patent?

What does 'inventive' mean?

What does 'innovative' mean?

What is a 'priority date'?

Should I conduct searches before applying for a patent?

What does a patent cost?

How can I minimise patent costs?

How can I obtain a worldwide patent?

How do I protect my invention overseas?

When can I use 'patent pending' on my products or services?

 

 

Does having a patent ensure I can make, use and sell my invention? 

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.

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What if someone makes, uses or sells my patented invention? 

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.

-> More on patent infringement & IP dispute resolution.

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What are the types of patent protection in Australia? 

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'.

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How long does it take for a patent to be granted in Australia? 

In the normal course of events, obtaining an Australian standard patent takes about five years. Why does it take so long?

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What is the difference between a provisional patent application and a complete patent application? 

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.

In Australia, a complete patent application may be for a standard patent or an innovation patent. It will be published 18 months after filing the earliest application.

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What does 'inventive' mean? 

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'.

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What does 'innovative' mean? 

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'.

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What is a 'priority date'? 

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.

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Should I conduct searches before applying for a patent? 

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.

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How can I obtain a worldwide patent? 

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.

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How do I protect my invention overseas? 

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.

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When can I use 'patent pending' on my products or services? 

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.

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