How to patent an idea Australia

A patent protects any device, substance, method or process that is new, inventive and useful. It does not protect artistic creations, mathematical models, plans, schemes or mental processes.

A patent is legally enforceable and gives you exclusive rights to your invention for the life of the patent.

A standard patent provides long term protection and control for up to 20 years from the day you lodge your application.

Benefits of a patent

A patent:

• gives you the right to stop others from manufacturing, using or selling your invention in Australia without your permission
• let’s you license someone else to manufacture your invention on agreed terms or take legal action against people who are using your invention without your permission.

Learn more about patents and how they are granted.

Engaging an attorney to help you

An attorney can help you choose the right patent and can increase your chance of successfully being granted a patent.

Check out the Engaging an attorney toolkit for the how, why, what and when to engage a patent attorney.

Patent resources

Find out more about an international-type search.

Learn more about the free patent analytics report.

Check out the SME portal to access IP webinars, toolkits and information on IP basics, enforcement and commercialisation.

Learn more about SME Fast Track to help you fast track your patent application.

Find out more about the SME Case Management service.

Patents are a great way of protecting your intellectual property. Plus, with proper licencing agreements in place, patents can become a valuable source of income for your business.  

To patent an idea in Australia, you must submit an application to IP Australia – the government agency which administers intellectual property rights and oversees legislation related to patents. 

However, these applications are often complex, time-consuming, and costly. You must prove your idea is unique, which isn’t a straightforward process. Even a provisional patent in Australia requires a detailed search and application process, and there’s no guarantee you can develop it into a full patent. 

To improve the chances of success, it’s generally advised that people engage a lawyer with experience in the field. This is especially true for first-time applicants. Having an expert in Australian IP law on your side greatly improves the process, but it also increases the cost. 

There’s a lot to consider when learning how to patent an idea in Australia. Let us help you get started on:  

• The different patent types 
• What the patent application process looks like 
• Patent costs in Australia 

Types of Patents in Australia

IP Australia grants standard patents supported by two other forms of application: provisional patents and international patent applications. 

Standard Patent

Standard patents are possible for almost anything used commercially. This can include a device, machine, substance, computer hardware or software, and potentially even some business methods. 

With a standard patent, you gain long-term protection over your invention for up to 20 years after your filing date, assuming the annual renewal fees are paid. This increases to up to 25 years for pharmaceutical substances.  

To be granted a standard patent, you must prove specific criteria, including: 

• New or “novel”: This is the first time the invention has been publicly disclosed. The new idea also must differ from pre-existing technology, and this difference should be more than an application of published data or common background knowledge. 
• Involve an inventive step: The new idea wouldn’t be simple for someone with knowledge and expertise in the relevant field to do. 
• Useful: The invention must do what the application states it does.
• Manufactured or applied in an industry: Must be a tangible invention; for example, you cannot patent artistic creations, theories, or mathematical models. 

The Patents Act 1990 lays out the complete requirements to get a patent in Australia. 

Examining a standard patent application and ensuring it meets the complete legal requirements can take six months to several years. 

Eighteen months after the earliest priority date, the Australian Official Journal of Patents publishes details regarding the patent application. 

READ: What You Need to Know About Starting a Business in Australia

Provisional Patent

Before applying for a standard patent, many people in Australia decide to patent their idea provisionally. This is a much shorter and less expensive process. It also allows applicants to establish an earlier priority date that may prove they were the first to develop their idea. 

Applying for a provisional patent acts as a placeholder. It signals your plans to file future applications without going through the entire process. To claim the priority date from your provisional patent application, you must apply for a standard patent or make an international application via the Patent Cooperation Treaty (PCT) within 12 months of filing.  

It is essential to remember a provisional patent alone does not provide patent protection.  

Unlike a standard patent, provisional applications don’t require a prolonged examination period. Plus, the process gives you time to assess if your invention is worth the additional money and time to file a complete application.  

While the Australian Official Journal of Patents publishes some details related to provisional applications (invention title, applicant name, etc.), protections are in place with no technical information revealed. 

International Protections

A standard patent from IP Australia protects your idea only in Australia. To get international protections, you either have to apply for patents in individual countries or take advantage of the PCT.  

Administered by the World Intellectual Property Organization (WIPO), an international application under PCT provides protection in 155 states. The treaty acts to file a patent in each member state simultaneously. 

Now Defunct Innovation Patent 

IP Australia previously awarded innovation patents as an alternative to the standard patent. Innovation patents were intended for products with short market life that are quickly replaced by newer innovations, such as inventions related to computing.  

This second-tier patent offered less protection (only up to eight years) and only required an “innovative” step, not an inventive step. In addition, the process of obtaining an innovation patent cost significantly less. 

The Australian Government chose to phase out this type of patent with the last day for filing on the 25th of August 2021. However, patents filed before this day that IP Australia has granted continue to get protection until they expire. 

How to Get a Patent in Australia: The Application Process

There are many different ways to approach the patent application process. Below are general steps for a provisional application and a standard application: 

Provisional Patent Application Steps 

1. Conduct a search to determine if your idea is similar to an existing patent. You can do this yourself or by an IP professional.
2. Complete a provisional application form.
3. Complete a provisional specification – this contains all the information about your invention. It should have as much detail as possible, including a title and description containing technical features and explaining how the design works.
4. Within one month of filing your provisional patent, IP Australia will process and publish the details of your application.
5. After this, you have 12 months to decide whether to seek a standard or PCT application. 

Standard Patent Application Steps

1. If you didn’t undergo the provisional application process, you should conduct a search to ensure your invention is new and does not infringe any existing patents.
2. Complete a Patent Request: Standard Patent form.
3. Write a complete specification including title, description, claims, abstract, and drawings (optional). This document requires careful preparation; if granted, it forms the basis for your patent.
4. IP Australia will publish the details of your unexamined application within 18 months of the earliest priority date.
5. Patent Examination: To determine the novelty of the idea, the presence of an inventive step, and whether the application is patentable. You can request an examination at any time within 57 months of your priority date.
6. After examination, IP Australia will provide a report detailing why the application is invalid or notice of acceptance. Before acceptance, other parties are allowed to oppose the patent’s ruling. 

International protection considerations

Making a PCT application requires separate considerations, including an international search process and applying through WIPO. 

Patent Cost in Australia

Unfortunately, an essential part of how to get a patent in Australia is paying fees. These fees are payable at different stages of the patent process and depend on the specifics of your application.  

Listed below are some of the fees related to patent costs in Australia. Bear in mind these do not include expenses associated with hiring an attorney. Seeking professional help to oversee your application will incur separate significant fees. 

Spread over its entire 21-year lifecycle, estimates of a standard patent cost in Australia are roughly $35,000. However, this is not a single lump sum, and the price is spread out due to annual renewal fees. 

Application Fees

The type of patent determines the application fee you will need to pay with cost savings available for applying online: 

 Searches, Examination, and Acceptance 

• Having an IP professional perform a Preliminary Search and Opinion (PSO) costs $950.  
• The examination fee for a standard patent is $490, and a re-examination will set you back $800. 
• Acceptance of a standard patent costs $250. 

Renewal Fees

Maintaining a patent requires the payment of renewal fees that increase as each year passes. Rising from $300 (online payment) on the 4th anniversary to $2650 on the patent’s 19th anniversary. 

Other Fees

A range of other fees can make up the overall patent cost in Australia. These include: 

• Voluntary Amendments
• International Fees
• Opposition and Hearings
• Sale of Documents

READ: 5 Steps to Register a Business Name in Australia

Patent your idea before anyone else does

When learning how to patent an idea in Australia, there’s a lot to get your head around. However, the benefits on the other side of the learning curve can easily outweigh the time and money it takes.  

Protecting your intellectual property and becoming its sole user can help grow your business and get you ahead of the competition. 

Another important way of protecting your business is finding the right domain and ensuring there is no confusion when potential customers try to find you online. If you’ve got the ideas, Crazy Domains has the best online solutions to make them into a business success.