What is a patent?

A patent is a monopoly right granted for a method, process, substance or device that is novel, inventive and useful.

During the term of the patent, the owner of the patent can exploit the invention, authorise another party to exploit the invention or can assign ownership of the patent to another party.

In Australia , there are two types of patents established by the Patents Act 1990 (Cth):

1.                  Standard patents; and

2.                  Innovation patents.

What is required to obtain a Standard Patent?

In general, there are a number tests and restrictions set out in the Act and in case law that must be met before a patent is capable of registration.  Some of the main requirements are:

(a) The patent embodies a new manner of manufacture.

This patent must embody a new and useful thing or a new and useful way of producing an old thing.  This means that the use of an existing idea in a new way or a discovery of a new use for and old thing would not meet this test.  The patent also must have some sort of economic utility; that is to say it must be a saleable product that has an actual and practical use.

(b) The patent is novel

The patent, when compared with publicly known inventions that existed before the filing/priority date of the patent application must be novel.  Disclosure of the invention or disclosure of information (which is not subject to a confidentiality agreement) can destroy “novelty” of the invention.  This is particularly so where the essential aspects of the claimed invention have been published in documentation prior to the filing of the patent.

(c) The patent involves an inventive step.

This means that the invention cannot be obvious to a skilled person in the relevant industry in light of the common general knowledge as it existed before the filing/priority date of the application – it must incorporate some sort of non-obvious inventive step.

(d) The patent must be useful

The item which will form the subject of the patent must be capable of achieving the intended result specified in the application.  However, this does not mean that if the patent could have been better designed, it is not to be considered useful.

(e) The patent must not have been secretly used

The patent must not have been secretly used before the priority/filing date of that claim by, on behalf of, or with the authority of the patentee (i.e. the patent applicant) or nominated person or the patentee’s or the nominated person’s predecessor in title to the invention.

(f) The description of the patent in the application must be sufficient and unambiguous

As part of the application for the patent, the applicant must disclose the invention fully, including the best known method for creating and reproducing the invention.  If a person sufficiently skilled in the area is unable to reproduce the item from the description in the patent alone, then the application will be insufficient.

Our Services

·         We work with patent attorneys to determine registrability and to file patent applications

·         Provision of licensing advice and preparation of licence agreements

·         Due diligence

·         Preparation of sale agreements

·         Advice relating to risk and asset protection, corporate structuring and taxation issues

·         Patent litigation

Patent Publications

·         Case study: SPC Fruit in Yoghurt interim patent

·         Case study: PGA Management due diligence of patent application

Where to now?

If you have devised or created an invention, you should seek legal advice before:

·         disclosing it;

·         secretly using it; or

·         commercialising it.

If you do any of these things prior to applying for the patent, you might lose your right to have the patent granted in your favour.

Where to now?

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It gives you a chance to ask any questions you may have and for a member of our team to gain background and provide an insight into the options available to you.

For more information please call us on +61 3 9620 9660 or send us an e-mail at info@mdplaw.com.au. We are here to help.