Why should I get a patent?
A patent gives you the exclusive right to exploit your invention for up to 20 years from the filing date of the complete application. This means you can prevent competitors from making, using, selling, or importing your invention without your permission.
Beyond the legal right itself, a patent serves several practical commercial purposes. It deters competitors from copying your product, supports premium positioning in the market, enhances the value of your business for investors and acquirers, and enables revenue through licensing. Filing a patent application also allows you to refer to your product as "patent pending," which signals to the market that protection is being pursued.
For a detailed discussion of the commercial benefits, see our page on why get a patent.
What can be patented?
A patent can be granted for any new and useful product, method, system, device, or composition of matter that provides a functional or technical solution to a problem. The key requirements are novelty (the invention must be new), inventive step (it must not be an obvious modification of what already exists), and utility (it must be capable of achieving its stated purpose).
Certain categories are generally excluded from patent protection: purely artistic creations, abstract ideas, mathematical models, and schemes for doing business without any technical implementation. The invention must have a technical character — it must solve a problem in a practical, functional way.
For formulations and compositions, it is usually necessary to demonstrate that the ingredients interact in a way that produces benefits beyond the sum of their known individual effects. Supporting evidence such as comparative test results can be valuable in establishing this.
For more on the requirements, see our guide to protecting your idea in Australia.
When should I file a patent application?
The general rule is simple: file before any public disclosure of your invention. Public disclosure includes publishing details online, selling the product, demonstrating it at a trade show, or even discussing it with potential investors or manufacturers without a confidentiality agreement in place.
In most countries, any public disclosure before filing can destroy the novelty of the invention, making it ineligible for patent protection. While Australia and the United States offer limited grace periods of up to 12 months for the inventor's own disclosures, these do not apply in all jurisdictions. Relying on a grace period can significantly limit your international options.
Filing early also secures your priority date — the date from which your rights are assessed. The earlier you file, the stronger your position if a competitor files a similar application. Learn more about the process by reading about provisional patent applications.
What do I need to file a patent application?
The essential requirement is a clear and detailed description of your invention, including how it works and how it can be implemented in practice. The description should be thorough enough that someone skilled in the relevant field could reproduce the invention based on what you provide.
Drawings or diagrams are highly recommended, as they help illustrate the structure, configuration, or process steps involved. Other supporting materials — such as design sketches, engineering notes, prototypes, or test data — can all be valuable in preparing a comprehensive patent specification.
You do not need a finished product or a working prototype to file. What matters is that the invention is described in sufficient detail to support a complete application. A patent attorney will work with you to ensure the description provides the best possible scope of protection.
Is my invention new enough for a patent?
Some degree of prior art is almost always found — but that does not mean your invention is unpatentable. The question is not whether anything similar exists, but whether your specific technical contribution is new and non-obvious.
A good starting point is to search Google Patents using keywords that describe the function and structure of your invention. This can give you a preliminary sense of the existing landscape. However, self-searching has limitations — relevant prior art may use different terminology, be classified in unexpected categories, or exist in languages you would not naturally search.
We can conduct a professional novelty search and, where appropriate, recommend an International-type search during the provisional stage to obtain official examiner feedback early. Regardless of search results, our approach focuses on claiming the invention from multiple perspectives to maximise the chances of securing meaningful protection. For more detail, see our page on assessing novelty.
How long does it take to get a patent?
The total time from initial filing to a granted patent in major jurisdictions is typically three to five years, but the process is designed to work in stages. A provisional patent application provides immediate patent pending status for 12 months. A PCT application extends this by a further 18 months.
After entering the national phase, the time for examination and grant varies by jurisdiction. In Australia and the United States, a first examination report typically issues within 12 to 18 months of requesting examination. In Europe and parts of Asia, the wait can be two to three years or more.
Expedited examination is available in most major jurisdictions for cases where speed is commercially important. Strategic deferral of examination is also an option when it makes sense to keep the application pending. For a detailed timeline, see our page on how long a patent takes.
Can software be patented?
Software can be patented in many jurisdictions, but eligibility depends on demonstrating that the software produces a technical effect or solves a technical problem. A purely computerised business process or a scheme implemented using only generic software is generally not patentable.
To stand the best chance of protection, a software-related invention should exhibit technical character — typically by interacting with hardware, networks, sensors, or other technical systems in a way that achieves a concrete technical outcome. The key is articulating the invention in terms of its technical features rather than its business logic.
Patentable subject matter is an evolving area of law, and different jurisdictions apply different criteria. We work closely with clients to prepare software patent specifications in the most technical manner possible. For more information, see our page on software patents.
Do I need international patent protection?
It depends on where your invention has commercial value. Patent rights are territorial — a patent granted in Australia only protects you in Australia. If your product will be sold, manufactured, or distributed in other countries, you should consider patent protection in those jurisdictions.
The good news is that you do not need to commit to international filings from the outset. The PCT system allows you to file a single international application that preserves your rights in over 150 countries. You then select specific countries at the 30-month mark, by which time you should have a clearer picture of your commercial prospects.
When choosing countries, consider where your product will be sold (consumer markets), where competitors might manufacture it (producer markets), and your home market. For a comprehensive guide, see our page on international patents.
What is a provisional patent application?
A provisional patent application is the recommended first step in the patent process. It establishes your priority date and provides 12 months of patent pending status at a relatively modest investment. During this period, you can begin commercialising your invention, testing the market, and refining the product.
The provisional application is not examined and is never published. If you decide not to proceed at the end of 12 months, it simply lapses and your invention remains confidential. If commercial progress is promising, you can proceed to a PCT application or direct national filings to continue the process.
It is important that the provisional application is thoroughly prepared, as the disclosure forms the foundation for all subsequent filings throughout the life of the patent.
What is the difference between a patent, a design, and a trade mark?
These are three distinct forms of intellectual property, each protecting different aspects of a product or brand:
- A patent protects the functional and technical features of an invention — how it works. It prevents competitors from making, using, or selling products that use the same underlying technology.
- A registered design protects the visual appearance of a product — its shape, configuration, pattern, or ornamentation. It does not prevent a competitor from making a product that works the same way but looks different.
- A trade mark protects a brand identifier such as a word, logo, or slogan. It prevents others from using a confusingly similar mark but does not prevent them from selling competing products under a different brand.
Only a patent protects the functional innovation itself. If you have developed a new mechanism, process, or technical solution, patent protection is the appropriate tool.
What happens if someone infringes my patent?
A granted patent gives you the legal right to take action against anyone who makes, uses, sells, or imports your patented invention without permission. Enforcement options range from sending a cease and desist letter through to bringing infringement proceedings in the Federal Court of Australia.
Available remedies include injunctions (court orders stopping the infringing activity), damages for financial loss, or an account of the infringer's profits. In cases of deliberate infringement, additional damages may be awarded.
The strength of your enforcement position depends heavily on the quality of your patent claims. Well-drafted claims that clearly define the inventive concept make it easier to establish infringement and harder for the infringer to design around the patent. For more detail, see our page on patent infringement.
Still have questions?
If your question is not covered above, or if you would like to discuss your specific situation, contact Patentec for a complimentary consultation. We are happy to explain the patent process in plain terms and help you understand the options available to you.