A patent provides its owner with legally enforceable, exclusive rights to use and commercialise an invention in the patent territory for the life of the patent. In exchange for this monopoly right, the patent owner must disclose to the public how the invention works, writes Dan Brush.
A patent can be granted for a device, substance, method or process that has been created that is new, original and useful (the 'base criteria') when compared with what is already published or known in the world.
Patents are granted on a country-by-country basis. A patent granted in Australia does not provide protection outside of Australia. However, there are treaties between countries that allow for group applications in multiple countries.
For a standard patent to be granted, the subject of the patent must include an inventive step and must be able to be used in an industry.
To be successful, a patent application must demonstrate that the invention is different in some way to existing technology, and that the difference derives from a new idea, which is something additional to the combination of previously published information or background knowledge.
What can be patented?
Patents can apply to a wide range of commercial activities. Special provisions apply to software, hardware, computer circuits and other computer-related inventions, business methods, biological inventions, micro-organisms and other biological materials.
For example, a 'business method' may be subject to a patent application where it directly involves a physical form or device to bring about a 'useful product'. For a business method to be patentable, it must satisfy the base criteria and show that the application of technology to a business method (eg, online business, financials, reporting or analysis) is directly involved with the creation of the 'useful product' in a substantial, not just incidental manner.
What cannot be patented?
Patents will not be granted if the subject of the patent application is not original or new when compared with things that are already known. As an example, an Australian patent application will not be granted if the subject of the patent was published or disclosed outside of Australia, even if the inventor can show that he or she did not have any knowledge of the prior work.
A patent application will also not be granted if the proposed invention is not new because the invention was publicly disclosed before the patent application was filed. A patent application may be defeated if an opponent can demonstrate that the applicant has sold or discussed the invention in public before the patent application was filed.
A patent application will be refused if it is for the expression of a principle or idea, without a practical adaptation.
In Australia, patent applications are not allowed for human beings or the biological process for their generation, artistic creations, mathematical models, plans, schemes or other purely mental processes. Patent applications for inventions with military application have further limitations.
Benefits of holding a patent
Australian patents can be useful tools to build and protect businesses. Benefits to patent owners of building a portfolio of patents include:
• an exclusive right to stop others from manufacturing, using and/or selling the invention described in the patent in Australia without permission; and
• an exclusive right to commercialise the patent, including the ability to license third parties to manufacture the patented invention on agreed terms and to take legal action against people who are using the patented invention without permission.
An Australian 'standard patent' can provide patent protection to its owner for up to 20 years. Patents for pharmaceutical ideas can provide patent protection to their owners for up to 25 years.
An Australian 'innovation patent' can provide patent protection to its owner for up to eight years. Innovation patents are designed to protect inventions that do not meet the inventive threshold required for standard patents.
Dan Brush is the head of the intellectual property and ICT team at law firm Colin Biggers & Paisley.
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