How to Patent in Australia

Filing a patent in Australia for your invention idea is one of the first steps toward securing your invention idea and if you are reading this, you are in the right place! Here are some common questions we have been asked and some general answers in relation to how to patent in Australia.

Please note our answers are for general information purposes only and are not intended as legal advice. If you are seeking legal advice or require any clarifications please contact us.

To patent your idea you will need to file a patent application with the Australian Patent Office. There are a few different types of patent applications that may be filed. However, as is further detailed below, the usual place to begin is with a provisional patent application. A patent application usually requires a patent request, which details the Applicant and Inventor, and a patent specification. The patent specification includes a detailed description of the invention. The description is required to be clear enough and complete enough for a person skilled in the art, such as an Engineer, to put the invention into practice. Patent Attorneys are specialist in the drafting of patent specifications and the filing of patent applications. If you require assistance, please contact us and we will assist you through the entire process of obtaining a patent in Australia.

New inventors often confuse the role of a Patent Attorney and a Patent Lawyer or Solicitor. The role of a Patent Attorney is to assess your idea or invention, conduct investigations such as patent searching, and prepare and file your patent application with the Australian Patent Office. Patent Attorneys are also skilled in international patent law and can assist with achieving patent protection around the world.

The role of a Patent Lawyer is usually in relation to patent litigation and Court procedure, although some Lawyers will also offer services at the initial investigations stage. However, please beware that the Lawyer will eventually need to refer you to a Patent Attorney which may result in a duplication of costs. In fact, Lawyers are prohibited from preparing and amending patent specifications before the Australian Patent Office.

Generally, the first step to achieving patent protection is the filing of a provisional patent application. The filing of a provisional application plants the flag and is the first step to securing your idea.

Provisional patent applications generally require a description of how your invention works and should include at least one figure which clearly details your invention. In essence, a provisional patent should have sufficient detail to allow another person who is skilled in the relevant technology, for example an Engineer or Designer, to put the invention into practice. Our patent attorneys have advanced degrees in Engineering and Science and can help fill the gaps to ensure your application is as complete as possible.

Sure. However strictly speaking in the industry, we generally refer to inventions rather than ideas. Generally, inventions are the technological manifestations of an idea. For example, if you had an idea to generate electricity from the sun, you would typically file a patent for the technological aspects of an invention to capture solar energy, such as photonic cell, rather than the purely intellectual idea of generating energy from the sun without any devised means to do so. Of course, a good Patent Attorney can generally direct a patent toward the underlying idea or “inventive concept” to provide you with the broadest possible protection for your invention.

There is no worldwide patent as such. However, you can file patents in most countries around the world. The first step is usually to file a provisional patent application, which is normally prepared by a Patent Attorney. The provisional patent application then serves as a basis for complete patent applications in Australian and overseas such as the USA. Often the complete application is in the form of an international patent application (otherwise known as a PCT application). An international application is subject to an international examination and may be filed in many countries around the world. Caska IP are specialists in filing international (PCT) applications and can assist you in achieving your international patent protection goals.

The cost of an Australian patent varies due to the type of application that is filed and the complexity of the invention. One of the most substantial costs of a patent is the fee for the patent drafting (writing) as this is by far the most important part of the patenting process.

The drafting cost is normally incurred at the provisional patent stage and again when any complete patents are prepared and filed. The complete patent may be a single Australian patent application, an international patent application or convention applications filed directly into countries such as the USA or China . You should also keep in mind that to ultimately achieve enforceable patent protection your application will need to be examined and accepted by the Patent Office in the country in which you are seeking patent protection.

At IP& we offer fixed patent drafting prices, for example, our patent costs to prepare and file a provisional patent application are generally between $3,000 and $7,000 including GST and Patent Office fees.

There are a number of costs associated with these processes and these costs vary substantially depending on the application you choose to file and the countries in which you ultimately seek patent protection.

We can discuss patent costs in your initial consultation and you can rest assured that at IP& we will give you a cost estimates up to a year in advance so you know where you stand without any hidden surprises.

A Patent Attorney is not a Lawyer. Rather, a Patent Attorney is an individual who as satisfied the requirements for registration as a Patent Attorney. A Patent Attorney usually has a technical degree in Science or Engineering and then undertakes further studies in Law focussed on patent, design and trade mark law. The requirements for registration as a Patent Attorney are defined by the Patent Acts 1990 and are detailed on the Professional Standards Boards for Patent and Trade Mark Attorneys.

A patent, when granted, provides the patent holder with an exclusive right to make, hire and sell the patented invention within the jurisdiction in which the patent is granted. The underlying philosophy is that you disclose your invention to the public, for example, all complete patent specifications are ultimately published. In return, you are granted an exclusive patent term of 20 years for a standard patent and 8 years for an innovation patent.

General Steps to Patenting

  • 1

    Research & Patent search

    Check if invention is new - search patent databases in Australia and overseas.

  • 2

    Assessment of Invention

    Compare the invention against known similar inventions and patent documents - is it different enough to be patentable? Should another type of IP right be used?

  • 3

    Draft a Patent Application

    Write a patent specification including text and drawings. Patent Attorneys specialise in the drafting and filing of patents.

  • 4

    File Patent at IP Office

    Patents are filed at the IP Office of the countries in which you wish to secure patents.

  • 5

    Examination & Prosecution

    A patent is examined by the relevant IP Office and examination reports may be issued. A response to the examination report is usually required to achieve acceptance.

  • 6

    Acceptance and Grant

    Pay any acceptance and grant fees - you now have an enforceable patent !

  • 7

    Renewal Fees

    Renewal fees are due to keep your patent alive and these typically increase over the lifetime of the patent.