A new invention can be the most valuable thing a small business owns. It can also be easy to lose, sometimes through a single post or a demonstration. In Australia, patent applications are made through IP Australia. This guide covers what to think about before you apply.
Patents come with traps that are easy to fall into by accident. Most of them relate to timing and secrecy. Getting those two things right early keeps your options open.
Is your idea new and inventive?
IP Australia says you need to be sure your idea is new and inventive before applying. An idea is not eligible if someone else has already protected it. It is also not eligible if you made it public more than 12 months ago. So the first job is research, and the second is silence.
IP Australia recommends searching the internet, including Google Patents and social media. It also suggests searching Australian and international IP databases. The Australian Patent Search database holds details of patent applications and grants. You can search by invention title, applicant, inventor, filing date or priority date.
If you plan to sell overseas, check whether the invention already exists there too. IP Australia points to international patent search databases run by WIPO. Examiners also run their own searches during examination. If they find something too similar, they will let you know.
Keep it secret until you file
IP Australia advises keeping your invention secret until you file an application or choose another option. Do not demonstrate it, sell it, discuss it publicly or post it online. When you talk about your business, focus on the problem your invention solves rather than the solution. That small habit protects a lot.
This can feel at odds with normal marketing advice. Most writing on social media marketing encourages sharing what you are working on. With an unprotected invention, that sharing can cost you the patent. The Queensland Government’s business site warns that discussing an invention with outside people before applying may mean losing the chance to patent it.
The same caution applies to writing about your work elsewhere. Guest posts for other websites are a good way to build a profile, but keep the technical details out until protection is in place. A post about the problem you solve is fine. A post that explains how your solution works is a risk.
Using confidentiality agreements
Sometimes you need to share details with a manufacturer, investor or developer. IP Australia suggests having anyone involved sign a confidentiality agreement before you share. Business Queensland says to make it clear the information is to be kept confidential. It recommends a confidentiality agreement for any dealings with outside people or organisations.
Keep a written record of the invention as well. Business Queensland lists laboratory notebooks, manuals or prototypes as ways to help prove you are the inventor. If the invention came from an employee’s official duties, the employer may own the patent. That is worth sorting out in employment agreements early.
The 12 month grace period
If you have already disclosed your invention, all is not always lost. IP Australia says you have 12 months from a public disclosure to file a standard patent application. You do not need to formally apply to claim this grace period. If you file after 12 months, the disclosure can block your application.
There is a catch for businesses with overseas plans. Not all countries offer a grace period. A disclosure that is forgiven in Australia may limit your options elsewhere. Treat the grace period as a safety net rather than a plan.
Provisional and standard applications
A provisional patent application is an optional and inexpensive way of signalling that you may file for a standard patent later. IP Australia lists the cost as $100 at minimum. It gives you a priority date, which is the day you first file. It does not give your invention any patent protection on its own.
You then have 12 months from the provisional filing date to decide whether to pursue a patent. If you do not file for full protection in that time, the application lapses. You would then lose the provisional’s priority date. The due date closes at 11:59pm AEST.
Detail matters in the provisional specification. Any features claimed in your standard patent must be disclosed in the provisional application. Features added later get a later priority date. A rushed provisional can therefore protect less than you think.
The standard application is the full patent application. According to Business Queensland, IP Australia examines applications and publishes accepted ones. Others then have three months to oppose the patent. Fees apply at several stages, including application, examination, acceptance and annual renewals.
Innovation patents are no longer an option
Older articles often mention a second type called the innovation patent. IP Australia states that the phasing out of the innovation patent system commenced on 26 August 2021. If you come across advice recommending one, check when it was written. The standard patent is the route to look at now.
Protection only covers Australia
IP Australia is clear that applying with it gives you protection within Australia only. To protect an invention overseas, you need applications in other countries. IP Australia’s site has information on the Patent Cooperation Treaty for international applications. Overseas costs can add up, so plan which markets matter most.
Patents and the rest of your brand
A patent covers an invention. It does not cover your business name or logo, which fall under other types of intellectual property. Building a recognisable brand is a separate task. Our article on clear branding in email marketing shows how consistent branding helps customers remember you.
Commercial planning matters as much as legal protection. A patent costs money to get and keep, so it should support a real business model. Our guide to a profitable online business venture covers that side of things. IP Australia also notes that small to medium businesses may be eligible for its free patent case manager service.
You can read more in IP Australia’s guide on what to consider before applying for a patent. It also covers other options such as design rights and trade secrets. Trade secrets are protected through secrecy and confidentiality agreements rather than registration.
Frequently asked questions
Can I talk about my invention before filing?
You can, but only with care. IP Australia advises keeping it secret and having people sign a confidentiality agreement. Talk about the problem it solves rather than how it works.
What does a provisional application cost?
IP Australia lists a minimum cost of $100. It does not give patent protection, but it sets your priority date. You then have 12 months to file a standard application.
Does an Australian patent protect me overseas?
No. A patent through IP Australia only covers Australia. You need separate applications in other countries.
Do I need a patent attorney?
IP Australia suggests considering a patent attorney if you want legal advice or hands on help. Business Queensland also recommends consulting a qualified patent attorney. Professional advice before filing can help you avoid timing mistakes.
This article is general information only and is not legal advice. Patents are handled nationally, but related matters such as employment and contract law can differ between states. Laws and processes also change. Speak with a qualified lawyer or registered patent attorney about your situation.
