Breaking Down the Steps to Obtaining and Enforcing an IP Patent in Australia

Got a great idea, business, or product that sets you apart from the competition? Protecting your intellectual property (IP) is key, and getting an IP patent is one way to do it. The process might feel a bit overwhelming at first, but that’s where an experienced IP lawyer can step in to make things so much easier.

Patents are vital tools for businesses and entrepreneurs, offering legal protection for your innovations and giving you a competitive edge. This means no one else can use your idea, product, or design without your permission. And while the process may seem daunting, it’s well worth the effort to secure your IP rights and prevent others from copying and profiting from your ideas.

Whether you’ve developed a groundbreaking product, a unique process, or an inventive solution, securing a patent ensures that your Intellectual Property (IP) is safeguarded against unauthorized use. 

This guide takes you through the step-by-step process of how to patent an idea and ensure your hard work and creativity are protected.

Types of Patents

A patent is a special legal right from the government that gives you exclusive control over your invention for a set time—usually 20 years. It means only you can make, use, sell, or distribute your invention, and it prevents others from using it without your permission. It's not forever, but it can be the difference between your idea making you millions and someone else taking credit for it.

Once a patent is issued, the owner needs to pay maintenance fees at specific times to keep it active. If the maintenance fee isn’t paid, the patent will expire.

In Australia, there are three types of patents:

Standard Patents

These patents cover new devices, substances, methods, or processes that are both innovative and useful. Standard patents give you the most comprehensive protection, making them tricky to work around and offering 20 years of exclusive rights.

Innovation Patents

These patents protect minor improvements on existing inventions and offer a shorter term of protection (up to 8 years). Innovation patents may be easier and faster to obtain, but they also offer less robust protection compared to standard patents.

Unlike standard patents, innovation patents don’t need a detailed examination of the invention’s novelty, creativity, or usefulness. Instead, they just need to meet a simpler requirement called an "innovative step" – basically, it has to be an improvement on something that already exists.

Provisional Patents

Unlike the other two types, provisional patents aren’t examined or officially granted. Think of them as a placeholder for your invention while you continue working on it. A provisional patent gives you 12 months to apply for a standard or innovation patent without losing your priority date (the date that establishes your ownership). This means any improvements you make during the provisional period will still count as part of your original invention.

How to Patent an Idea

Step 1: Confirm Your Idea is Eligible for a Patent  

Your invention must meet specific requirements to be patentable. Ensure that your idea is:

• Novel: it must be new and have not been made public before.
• Non-obvious: the idea must not be obvious to a person with ordinary skills in the relevant field.
• Useful: your invention must have some practical use or application.

Aside from this, make sure that you also understand what a patent is and what it covers as well as the cost associated with filing a patent.

Step 2: Conduct a Patent Search

Before filing for a patent, it is crucial to conduct a thorough search to ensure that your idea has not already been patented by someone else. This search can help you identify similar inventions or potential obstacles that may prevent you from obtaining a patent.

You can perform a preliminary search on Australian Patent Search if your idea is eligible for patent protection in Australia. On the other hand, if you want to apply for international protection, a global patent search can be done through WIPO's PATENTSCOPE website.

Step 3:  Prepare and File Your Patent Application

After confirming that your idea is eligible for a patent and conducting a patent search, it is time to prepare and file your application. This involves:

• Applying online and filing out the necessary application form.
• Creating detailed drawings or diagrams of your invention.
• Writing an accurate and comprehensive description of your invention, including how it works and what makes it unique.
• Paying the required fees.

When applying for a patent, check whether you need a provisional or a standard patent application. A provisional application allows you to secure a priority filing date for your invention and gives you more time (up to 12 months) to file a non-provisional application.

A provisional patent application will give you more time to further develop your invention and assess its commercial potential before committing to the more costly and detailed standard patent application.

Application Fees

Provisional Patent

An international-type search request is not mandatory for a provisional patent application, but it can be requested if you want to do an international search. 

Standard Patent

A standard patent application costs a minimum of $400.

Keep in mind that the patent filing process can be a bit tricky, so working with an IP lawyer or agent can make a big difference. Their expertise can help make sure your application checks all the boxes and boosts your chances of getting your invention patented.

Step 4:  Publication and Examination

Once your patent application is filed, it will undergo the publication and examination process. This means that your invention will be made public after 18 months from the date of filing, unless you request for early publication. This is standard practice under the Patent Cooperation Treaty (PCT), which Australia is a part of.

The examination process involves a thorough review of your patent application by an examiner to determine if your invention meets all the requirements for patentability. The examiner will check if your invention is new, non-obvious, and has industrial applicability.

During this stage, you may receive an office action from the examiner requesting for additional information or amendments to your application. It is important to respond promptly and accurately to these requests to avoid delays in the approval process.

Step 5: Grant of Patent

If your patent application is deemed to meet all the requirements, you will be granted a patent for your invention. This means that you will have exclusive rights over your invention for 20 years from the date of filing in Australia. Keep in mind that this does not automatically grant you protection in other countries - you will need to file separate applications in those countries if you wish to seek international protection.

Once your patent has been granted, it is important to maintain it by paying renewal fees every year. Failure to pay these fees can result in your patent being revoked.

Step 6: Enforcing Your Patent Rights 

Once your patent is granted, you have the exclusive right to control who uses your invention. Here’s how you can enforce those rights effectively:

Monitor for Unauthorized Use 

Keep an eye on the marketplace, competitors, and your industry for potential infringement. Tools like Google Patents and domain monitoring services can help identify violations. 

Send a Cease and Desist Letter 

If infringement is detected, your first step should be to send a formal Cease and Desist letter. It informs the infringer of your patent rights and requests they stop their unauthorized use immediately. 

File a Lawsuit if Necessary 

If the infringing party fails to comply, you have the right to take legal action. Patent litigation can be costly and time-consuming, but it’s often necessary to protect your intellectual property. Collaborate with an experienced IP attorney to build a strong case. 

Protect Your Innovations Today 

Getting and enforcing a patent might feel overwhelming, but it’s an important step for any entrepreneur or business owner wanting to protect their ideas. By following these steps on how to patent an idea, you’ll be ready to secure and maintain your intellectual property, keeping your hard work safe and truly yours.

Have questions about patents or need guidance filing your application? Reach out to a qualified IP lawyer in Australia for advice and support throughout the process.