Patent law plays a crucial role in fostering innovation by providing inventors with exclusive rights to their creations. In Australia, the patent system is designed to encourage inventors and protect their intellectual property. Patent registration not only protects businesses’ commercialisation but also adds significant value to their asset base.
UNDERSTANDING THE AUSTRALIAN PATENT SYSTEM
The Australian patent system is governed by the Patents Act 1990 (Cth), which sets out the criteria and procedures for obtaining a patent. The system is administered by the Australian Patent Office, known as IP Australia. To be eligible for a patent in Australia, an invention must be novel, involve an inventive step, and be useful or applicable in an industry, including methods of reproducing. The Australian system prioritises the first person who fills the patent application over any non-applicants.
Inventions such as biotech, pharmaceutical, MedTech, medical device or civil engineering can be covered by a patent.
Patent protection can last 20 years for a standard patent or 25 years for a pharmaceutical patent. It will grant the owner exclusive commercial rights, the right to license and the right to take legal action against patent infringement in Australia.
CHALLENGES IN REGISTERING PATENTS
SUBJECT MATTER ELIGIBILITY
One of the primary challenges in obtaining a patent in Australia is ensuring that the invention falls within the scope of patentable subject matter. Not all innovations are eligible for patent protection. Exclusions include mere discoveries, scientific theories, mathematical models or pure mental processes and methods of medical treatment. Navigating these exclusions while still demonstrating the inventiveness of an idea can be a delicate balance.
STRINGENT EXAMINATION PROCESS
Australia maintains a rigorous examination process to assess the patentability of an invention. The examination involves scrutinising the novelty and inventiveness of the claimed invention. The process can be time-consuming and requires a comprehensive understanding of the patent requirements, making it a challenging step for inventors.
OPPOSITION PROCEEDINGS
After filing a patent application, third parties have the opportunity to oppose the grant of a patent during a specified period. Facing opposition proceedings adds another layer of complexity to the patent registration process, requiring inventors to defend the novelty and inventiveness of their creations.
THE PATENT COOPERATION TREATY (PCT)
Inventors seeking international patent protection may find it challenging to navigate the diverse legal landscapes and align their applications with the requirements of multiple countries.
Nevertheless, the PCT, administered by the World Intellectual Property Organization (WIPO), of which Australia is a member (along with 150 counties), enables eligible inventors to file a single international application for a patent in multiple countries. Hence, a PCT application helps streamline the inventor’s patent filing process for all PCT countries and jurisdictions, which enables time and cost savings.
Bearing in mind that inventors still need to enter the national phase, namely applying for patent protection in each country under the PCT system.
ONGOING LEGISLATIVE CHANGES
Patent laws are dynamic and subject to changes. Staying abreast of legislative amendments and ensuring compliance with the latest regulations can pose a significant challenge for inventors.
LEGAL EXPERTS
Navigating the patent system requires not only time and financial resources but also a thorough understanding of the legal intricacies, making it a challenging endeavour for many innovators. The IP House Lawyers, with more than 20 years of expertise in Intellectual Property Law, can duly assist inventors in navigating the intricate process of obtaining patent protection.
For any further information or queries on the above content, please contact us.
The Author
Jean Kallmyr | Lawyer, The IP House Lawyers | t: 0435 799 831 | e: admin@theiphouse.com.au
Key Contact
Claire Darby | Managing Director/Lawyer, The IP House Lawyers | t: 0412 998 951 | e: claire@theiphouse.com.au
Disclaimer
The information and contents of this publication do not constitute any legal or financial advice. This publication is intended only for reference purposes for The IP House Lawyers’ clients and prospective clients.
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