WIPO Lex

A Guide to Applying for your Patent

APPLICATION GUIDE

A guide to applying for your patent

Pa te nt s

Robust intellectual property rights delivered efficiently

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• To process your, or another person’s, patent application.

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IP AUSTRALIA PatentS aPPLICatIOn GuIde

Contents First the basics

decision 1: Can I patent my invention?

decision 2: should I patent my invention?

decision 3: What type of patent?

Innovation patent vs. standard patent

decision 4: What type of application?

Provisional applications

Complete applications

International applications

The process of patenting

Other things you need to know

How to file a provisional application

How to file a complete application

Processing your innovation patent application

Processing your standard patent application

Patenting overseas

Costs 23

Where to find more information

This publication serves as a guide and should not be regarded as an authoritative statement on the relevant law and procedure. Whilst we make every effort to ensure the information presented is accurate and up to date, you should check with IP Australia before relying on the information. Although our staff cannot give you advice about your particular circumstances, we can answer general questions about the Australian patent system. We recommend that you seek professional assistance before applying for a patent.

IP Australia has a series of fact sheets which are referenced throughout this guide. These fact sheets can be downloaded from the IP Australia website www.ipaustralia.gov.au

IP AUSTRALIA PATEnTs APPLICATIOn guIdE 1

IP AUSTRALIA PatentS aPPLICatIOn GuIde

First the basics WhAT IS A PATeNT? A patent is an IP right granted for new technology you have invented. It is legally enforceable and gives you the exclusive right to commercially exploit your invention in Australia for the term of the patent. You can also obtain patent protection overseas.

Seek PRoFeSSIoNAL AdvICe Patenting and commercialising an invention can be costly, time-consuming and requires a range of skills you may not currently have. Furthermore, as a first time applicant, you probably don’t know what you don’t know.

We strongly recommend you seek advice from a patent attorney. Most people would not purchase a home without professional assistance, and yet obtaining a patent is more complex. If you get it wrong from the outset, it can be impossible to correct an error, resulting in a lost opportunity to protect your invention.

keeP yoUR INveNTIoN A SeCReT Your invention must be kept secret until you have applied for patent protection. If you demonstrate, sell or discuss your invention in public before you apply, you can lose the opportunity to patent it.

You can still talk to your employees, business partners or advisers about your invention, but make it clear that the information is to be kept confidential. You should use written confidentiality agreements, particularly when negotiating with potential business partners.

PRIoRITy dATe—AN ImPoRTANT CoNCePT The date you first file a patent application establishes what is known as a priority date. Potential competitors who file an application at a later date for the same invention will not be entitled to patent it due to your earlier priority date.

IP AUSTRALIA PatentS aPPLICatIOn GuIde

doN’T RePLICATe SomeThINg ALReAdy PATeNTed You don’t want to apply for a patent for an invention that isn’t new. Before investing large amounts of time and money, search patent databases, sales brochures and the internet. This will help you determine if your invention has already been thought of by someone else.

SeARChINg AUSTRALIAN PATeNT dATAbASeS You can search Australian patent documents without any charge via our website using the databases listed below.

AusPat, the search system for Australian patent data provides a single point of enquiry for information on Australian patents. AusPat provides quick, structured or advanced search options to search several bibliographic fields including, document number, International Patent Classification mark, Applicant/Inventor name, and title. data from AusPat dates back to 1920.

Australian Published Patent data Searching contains abstracts of Australian patent applications from 1975 onwards in image (not text) format, and some bibliographic data for pre-1975 applications going back to 1920.

AU Patent Specifications allows you to search full copies of Australian patent documents in image format by application number or patent number.

SeARChINg PATeNTS WoRLdWIde Our website provides links to a range of patent databases, including those of the major overseas IP offices. Most of these databases are free to search, but using them effectively is a specialised skill. You may want to contact a patent attorney or professional searcher to search for you.

WhAT NexT? now you know the basics, there are some important decisions ahead. They are:

• decision 1: Can I patent my invention?

• decision 2: should I patent my invention?

• decision 3: What type of patent?

• decision 4: What type of application?

IP AUSTRALIA PatentS aPPLICatIOn GuIde

decision 1: Can I patent my invention? A patent may be granted for a device or machine, a substance, a process or computer hardware and software, and even some business methods—in short, almost anything commercially useful. For a patent to be granted an invention must:

• be a manner of manufacture. A patent may be granted only for a tangible invention. no matter how ingenious or unusual they may be, you cannot patent artistic creations, mathematical models, theories, ideas or purely mental processes

• be new (the legal term is “novel”), which means that the invention has not been publicly disclosed in any form, anywhere in the world. Examples of disclosures that could show your invention is not new include published patent specifications (both Australian and foreign), textbooks and technical journals, internet sites, or the sale or use in a public area (including demonstrations) of a product in Australia

• involve an inventive step for a standard patent. The invention must not be obvious to someone with knowledge and experience in the technological field of the invention

• involve an innovative step for an innovation patent. There must be a difference between the invention and what is known about that technology, and this difference must make a substantial contribution to the working of the invention

• be useful, your invention should do what you say it will do

• not have been secretly used by you or with your consent.

Valid patents must also meet other requirements of the Patents Act, in particular:

• a sufficiently clear and complete description. It is extremely important that you put into the description (including any drawings) all the necessary information about the technical details of your invention

• claims and the description in respect of the same invention. Are the claims fairly based? For example, if your application described a solar cell, claims that make no mention of how light is converted to energy may not be fairly based

• claims must define only one invention.

If you want to protect the way your invention works then patenting may be the most appropriate option, but if the appearance of your product is important and innovative (rather than how it works), then a registered design may be more appropriate. For more information on registered designs visit www.ipaustralia.gov.au.

IP AUSTRALIA PatentS aPPLICatIOn GuIde

decision 2: Should I patent my invention? It’s futile patenting an invention unless you have a plan for commercialisation and can defend it against infringement. A patent should be considered simply as a “barbed wire fence” around your property. It’s not bullet proof and requires maintenance, but it does send a strong signal to potential trespassers.

You should strongly consider patenting if:

• the possibility of commercial returns outweighs the time, effort and money required to acquire and maintain a patent

• the limited monopoly a patent offers would help mitigate the risks of IP theft in the markets you are interested in

• you have the resources to manage your intellectual property

• a thorough search reveals no other similar technology

• you own the invention and have kept it a secret.

Lodging your application via a patent attorney can greatly reduce the risk of serious mistakes and improve the commercial value of your patent.

There are several reasons why you may not want to file a patent. Being first to market may be worth more to you than a patent. Lodging a patent tells the whole world what you’re working on. some inventors of products with short life-cycles often seek to establish a market leader position before competitors can react. In these cases a trade mark may be a valuable asset as it protects the name of the product and the values consumers relate to that name.

For inventions with a limited market value, the cost of getting and maintaining a patent may not be justified. Your invention may have a limited market or may only be useful in countries where it’s difficult to secure patent protection.

Even if your invention is patentable, keeping a trade secret via confidentiality agreements can sometimes be a better strategy. The main benefit of trade secrecy is that it can exist for as long as the information remains confidential, whereas patents and designs have a limited monopoly term. This type of strategy is only worthwhile if the product is difficult to reverse engineer (which means that it is difficult to ascertain exactly how it is manufactured).

If your invention is new, not publicly disclosed and has commercial potential, then you are ready to consider what type of patent will suit your needs.

IP AUSTRALIA PatentS aPPLICatIOn GuIde

decision 3: What type of patent? There are two types of patents in Australia:

• A standard patent gives long-term protection and control over an invention. It lasts for up to 20 years (or 25 years for pharmaceutical substances).

• An innovation patent is a relatively quick and inexpensive way to protect an incremental advance on existing technology rather than a ground-breaking invention. Protection lasts for a maximum of eight years.

The following table provides a quick overview of the major differences between a standard patent and an innovation patent.

Innovation Patent Standard Patent

Your invention must:

The application should include:

A patent is granted if:

Examination:

Certification:

Publication in the Australian Official Journal of Patents:

Protection period:

Be new, useful and involve an innovative step

A title, description, up to five claims, drawings (if applicable), an abstract and forms

The application satisfies formalities requirements (note a ‘granted’ innovation patent can not be enforced)

Optional. Examination can be requested by you or a competitor to clarify your legal rights

Must comply with substantive requirements as determined by an examiner. Only after certification can it be enforced.

At grant and again at certification

Eight years, if annual fees paid

Be new, useful and involve an inventive step

A title, description, no limit to the number of claims, drawings (if applicable), an abstract, and forms

The application is examined and found to satisfy substantive requirements

Mandatory as substantive requirements must be met before a patent is granted

n/A

18 months from priority date and again at acceptance

20 years, if annual fees paid (or 25 years for pharmaceuticals)

How long does the One month for grant six months to several years depending on circumstances process take?

How much does it cost? Approximately $1500 including Approximately $9000 including maintenance fees over 20 maintenance fees over 8 years years (not including advisor fees)

note: Fees are subject to (not including advisor fees) change

IP AUSTRALIA PatentS aPPLICatIOn GuIde

INNovATIoN PATeNT vS. STANdARd PATeNT There is no simple rule for determining whether your invention is more likely to be suited for standard patent or innovation patent protection. This depends entirely on the nature of the advance made by your invention and what is already known in the same field of technology. For example, the invention of a new substance that re-grows hair may be appropriate for a standard patent, whereas a treadmill adjusted to be an automated dog walker may be more suitable for an innovation patent. The following are the three main differences explained.

1. The INNovATIoN PATeNT hAS A LoWeR INveNTIve ThReShoLd The innovation patent option aims to provide business with a relatively inexpensive form of IP protection, which is quick and easy to obtain, for inventions having a short commercial life (e.g. simple tools, utensils, machinery or equipment).

Because the inventive threshold has been lowered compared to a standard patent, an innovation patent is also suited to inventions demonstrating comparatively minor advances over existing technology which may not qualify for standard patent protection. This will help you to acquire rights for incremental inventions and start to recoup your investment at each stage of development.

2. The STANdARd PATeNT PRovIdeS LoNgeR PRoTeCTIoN For inventions, in areas such as pharmaceuticals, that have a longer development and commercialisation cycle, or inventions involving more complex technological advances, a standard patent may be more suitable.

An innovation patent may be granted for the same subject matter as a standard patent, except plants and animals or the biological processes for their generation, but has a shorter term of protection than a standard patent— eight years as opposed to 20 (which can be extended to 25 years for inventions relating to pharmaceutical substances).

3. exAmINATIoN IS mANdAToRy FoR STANdARd PATeNTS Both innovation and standard patents must be examined before you can enforce your rights. However, by default, innovation patents are not examined unless specifically requested. This saves you time and money by delaying examination until you really need it. standard patents must be examined. At the time of examination you will be sent a notice to pay the examination fee. If you don’t pay the fee your application will lapse.

Once you have identified the best patent type, you need to determine the right type of three application options.

IP AUSTRALIA PatentS aPPLICatIOn GuIde

decision 4: What type of application? There are three types of patent applications: provisional applications, complete applications and international applications.

PRovISIoNAL APPLICATIoNS This is the easiest way to get the earliest possible priority date, however, it does not give you patent protection on its own. If you decide to pursue patent protection then you need to file a complete application within 12 months of your priority date.

Provisional applications are only optional, but useful if you operate in a highly competitive industry where constant innovation demands the earliest possible priority date. You may also appreciate some time to determine if your invention is worthy of further time, money and effort.

If you don’t file a complete application before the 12 months is up then you lose your priority date.

ComPLeTe APPLICATIoNS Applications for standard or innovation patents are called complete applications. A complete application is necessary to actually have a patent granted. Complete applications should be considered “the real thing”, whereas a provisional gets you priority date and signals your intention to lodge a complete application in the near future.

IP Australia publishes details of your patent application in the Australian Official Journal of Patents (AOJP), which is made available to the public through our website.

Publication is an important step for two reasons. First, the contents of your standard patent application or innovation patent are no longer confidential which means that your invention becomes part of the knowledge of the general public and may therefore subsequently assist in advancing industry and technology. For example your invention may inspire others or be used to help solve other problems.

The second reason concerns possible action you can take if someone else infringes your patent. Once you have a granted standard patent or a certified innovation patent you may wish to take legal action for any infringements that occurred from the date we published your application.

IP AUSTRALIA PatentS aPPLICatIOn GuIde

INTeRNATIoNAL APPLICATIoNS An international application is a useful way to apply for patents in a number of different countries simultaneously and protect your potentially important export markets. These applications are also known as PCT (Patent Co-operation Treaty) applications. For more information on international applications see page 21.

The PRoCeSS oF PATeNTINg

$ = IP Australia fees apply

IDEA

Search Does it already exist?

Provisional Application (optional)

Standard Patent

Published in official journal

Seek Professional Advice

Ide

$ Innovation Patent

Checked to satisfy formalities

Granted and published in official journal

Pay annual fees

Examination (if requested)

Certified in official journal

If rejected, you have the right

to respond

Subject to Opposition

Examination

Accepted

Published

If rejected, you have the right

to respond

$ $ Pay annual fees

Patent granted and patent deed

acquired if unopposed

IP AUSTRALIA PatentS aPPLICatIOn GuIde

other things you need to know hoW To FILe A PRovISIoNAL APPLICATIoN There are several ways you can file, you can

• use the services of a patent attorney

• apply online through our website, www.ipaustralia.gov.au

• lodge in person at certain CBd post offices or at IP Australia, 47 Bowes st Phillip ACT

• mail your application to The Commissioner of Patents, IP Australia, PO Box 200, Woden ACT 2606

• fax your application to our secure Business Transactions Fax (02) 6283 7999.

If you apply online you can electronically attach files to your application. due to international patent standards these files must be in a PdF, JPEg, TIFF or TXT format. We do not accept word processing documents in dOC or dOCX format.

WhAT doCUmeNTS do I Need To FILe? Your provisional application should include:

• A completed Patent Request: Provisional Application form.

• A provisional specification.

• The filing fee.

PRePARINg yoUR PRovISIoNAL APPLICATIoN Patent request form

The patent request form can be downloaded from our website www.ipaustralia.gov.au. An electronic version is used if you apply online. Please read the online instructions carefully before filling in the patent request form, and keep a copy of the completed form for your own records.

Provisional specification

The purpose of a provisional specification is to describe your invention. It should include as much detail as possible, especially if you intend to use it to establish a priority date. keep a copy of the provisional specification for your records. The specification should include a Title and description.

An example provisional specification is shown on page 12.

IP AUSTRALIA PatentS aPPLICatIOn GuIde

TITLe start the specification with the same invention title you used in the Patent Request form.

deSCRIPTIoN After the title you should identify the technical field of your invention. If your invention was made as a result of problems that you are aware of with other products, you should briefly note those problems.

The next part is a statement of those technical features you consider are essential to the way your invention works (see page 1 lines 10 to 13 of the “shaker can” example). After this statement, list the various preferred or optional features of your invention (see page 1 line 23 to page 2 line 4 of the example).

The remainder of the description sets out the best way or ways you know of putting your invention into effect. This must be described in sufficient detail so that someone with knowledge of the technology could reproduce your invention from the information given. You may include examples and drawings to help describe your invention, but it is not necessary to include manufacturing details such as dimensions if they are not critical to the way your invention works. It is optional whether the provisional specification also includes claims that define your invention.

The example specification describes in detail an improved shaker can with reference to Figures 1– 4. The figures are listed and a few words are given against each figure in the list to explain what it illustrates. The features of the “shaker can” illustrated in the figures have been given their own reference numeral which is used when referring to those features in the description. Only one example of a “shaker can” according to the invention is described, but where an invention can take different forms it may be desirable to describe several examples of the invention.

note how the specification describes the material to be used in the “shaker can”. It makes it clear that a range of materials could be used to make the invention work. Obviously some materials would be more suitable than others, and certain specific examples are given on page 2 lines 2–4 of the sample specification.

The feature of a “container” is an essential feature of the invention as the invention would not work without it, while the use of sheet metal, for example, for the container is a preferred choice of material.

The example specification illustrates the importance of including as full a description of your invention as possible before you file a provisional application.

IP AUSTRALIA PatentS aPPLICatIOn GuIde

exAmPLe: PRovISIoNAL SPeCIFICATIoN

The shake r can is p

referably m ade from

sheet met al, howeve

other mate rials can a

lso be use d. For exam

ple glass c ontainers

having she et metal co

ver are fou nd very su

itable. The shaker can

may also b e made of

a suitable food grade

plastics m aterial.

The invent ion may b

e better u nderstood

with refere nce to the

illustration s of embod

iments of t he inventio

n which:

Figure 1 is an elevatio

n of an im proved sha

ker can w ith parts

separated and the co

-acting pos ition of the

cover dotte d,

Figures 2 a nd 3 are d

iametrical sectional e

levations o f the top o

a can show ing the co-

acting reta ining mean

s, and

Figure 4 is a similar v

iew of the upper part

of a cover having a

flanged or beaded gri

pping rim.

The contai ner shown

which is c ylindrical w

ith open to p 5 has in

its wall ne ar said top

, perforatio ns which f

orm a sha ker area 6

and the co ver 7 which

is made to fit upon the

container s omewhat

tightly has in its wall

a correspo nding ope

ning 8. To prevent

unintention al removal

of the cove r 7 there is

provided in the walls

of the con tainer and

of the cov er 7 comp

lementarily positioned

co-acting o utward or

inward ann ular corrug

ations 9 w hich will

engage on e with the

other when the cover i

s pressed down upon

the top of the contai

ner and to facilitate a

ssembly, t he wall of

the cover m ay be cut

inwardly fro m its edge

as at 10. If desired

the cover m ay have a

gripping rim or bead 11

formed the reon or

some bulb ous projec

tion of part ial vertical

and outwar dly dispose

ribs or cor rugations m

ay be form ed in the c

over wall t o provide a

secure grip when grasp

ed by a ha nd.

(Example front pag

AusTRA LIA

Patents Act 199

PRovISI oNAL SP

eCIFICA TIoN

IMPROVE d sHAkE

R CAn

The inve ntion is

describe d in the

following stateme

ImPRoved ShAkeR CAN

For many years shakers for salt and like granular materials have

consisted of a container having holes through which the material

can be shaken. This invention has been specially devised in order

to provide an improved shaker can of simple, cheap, effective

and readily reusable construction and whereby the contents are

protected from air and may be readily shaken or sifted therefrom

when desired, and unintentional or wasteful escape of said contents

is prevented.A shaker can in accordance with this invention comprises a

container having an open top and a perforated shaker area in its wall

near said top, and a close fitting cover revolvable about said top and

having corresponding opening in its wall.

The opening in the cover is of such a size and in such a position that

when said opening and the shaker area are juxtaposed by revolution

of the cover upon the container the contents of the latter may be

shaken or sprinkled from the can through said perforated area, and

upon revolution of the cover so that the opening therein is beyond

said area the can is closed thus preventing waste of the contents or

deterioration of the same by access of air thereinto.

For revolvably retaining the cover upon the container, the cover and

the container preferably have in its wall a corresponding inward or

outward annular corrugation. The cover is preferably removable so that the can may be recharged

and reused as often as desired. The cover wall may additionally

have a short cut inwardly from its edge to permit it to be sprung

down upon the container top until the corrugations engage one

within the other.

IP AUSTRALIA PatentS aPPLICatIOn GuIde

hoW To FILe A ComPLeTe APPLICATIoN Remember “complete” simply refers to a standard or innovation patent application that’s ready to go. When filing you can:

• use the services of a patent attorney

• apply online through our website, www.ipaustralia.gov.au

• lodge in person at certain CBd post offices or at IP Australia, 47 Bowes st Phillip ACT

• mail your application to The Commissioner of Patents, IP Australia, PO Box 200, Woden ACT 2606

• fax your application to (02) 6283 7999.

WhAT doCUmeNTS do I Need To FILe? Applications for standard patents or innovation patents (i.e. complete applications) should include:

• either a Patent Request: standard Patent form or a Patent Request: Innovation Patent form

• a complete specification including an abstract

• the filing fee.

PRePARINg yoUR ComPLeTe APPLICATIoN Patent Request form—standard or innovation patent

A blank copy of the patent request form for standard patents together with instructions for filling it in can be downloaded from our website. Please read the instructions carefully before filling in the patent request form, and keep a copy for your own records.

The patent request form for an innovation patent is made up of three parts and must include all applicants and the nature of the invention. All completed parts must be signed by the same person and filed at the same time.

WhAT IS A ComPLeTe SPeCIFICATIoN? A complete specification is made up of Title, description, Claims, an Abstract and drawings (optional). The specification should be drafted carefully since this is the document on which a patent, if granted, is based.

TITLe The title should appear on the first page as shown in the example on page 16. If the patent is based on a provisional application then you should use the same title.

IP AUSTRALIA PatentS aPPLICatIOn GuIde

deSCRIPTIoN The example specification shown on page 16 is written for an innovation patent, although the level of detail required when describing your invention is the same for a standard patent or a provisional specification. Remember that it is important to include as full a description of your invention as possible before you file a complete application.

CLAImS Claims are an important concept and function like mining rights. In the early days of a gold rush, miners staked claims in the ground where they wanted exclusive rights to dig for gold. Patent “claims” work in a similar way, except they’re based on exclusive rights to an invention rather than a piece of land.

If you try to claim too much, it may be difficult to obtain or at least defend those rights. However, if you claim too little you may miss out on valuable opportunities. Poorly worded claims can be confusing and completely miss the true “inventive step” in your technology. Patent Attorneys are experts at writing claims, which is why you are strongly advised to use their services.

Claims are important because they determine the scope of the monopoly given by a patent. The claims must:

• be clear and concise

• distinguish your invention from what is already known

• set out all the essential technical features of your invention

• be consistent with the description.

statements about attributes or advantages of your invention are not suitable as claims.

A standard patent can have any number of claims (note: additional fees apply at the time of acceptance if the number of claims exceeds 20). An innovation patent can have up to five claims.

You should also be aware that you may lose the priority date established by an earlier provisional application for any claims that include a feature which you did not describe in the provisional specification.

Page 3 of the example of a complete specification gives examples of well written claims. It defines only those features that are essential to the operation of the shaker can.

IP AUSTRALIA PatentS aPPLICatIOn GuIde

In a complete specification, it is common to use the same words in Claim 1 as in the statement of the essential features of the invention in the description (this is shown in the example). Claim 1 states that the container has an open top and perforations in its wall. The construction of the cover is not explicitly specified, other than that it must be able to revolve about the top and must have any opening in its wall corresponding to the perforations. These are the essential features of the shaker can, and the applicant would hope that those features alone would be sufficient to distinguish the claimed invention from existing shaker cans.

A complete specification for a standard or an innovation patent can include more than one independent claim but they must all relate to the same invention. For example, if your invention is a new product, you may be able to include independent claims for the product, a new process specifically adapted to make the product, and perhaps a new apparatus to carry out that process.

Claims 2 to 4 of the example specification make explicit reference to one or more previous claims by using such phrases as “The shaker can as claimed in claim 1”. The purpose of this approach is to define features that you consider to be desirable or optional—such as the use of sheet metal in Claim 3 of the example specification—but not essential to your invention.

Claim 5 of the example defines the most preferred form of the invention with reference to the description and/or drawings.

AbSTRACT Patent applications can be lengthy and technical documents. You should include an abstract at the back of your specification to act as an executive summary. This will help the reader quickly identify the key features of your invention. The example on page 17 includes an abstract for the “shaker can”. note: drawings are optional but recommended if they help explain your invention.

IF yoU LeAve ThINgS oUT It’s important to include all the necessary information about your invention before you file a complete application. If you leave something out you may be able to add it later to the specification, but you will usually not be able to claim it. However, in some circumstances you may be able to get patent protection by filing another type of patent application. This is discussed in our fact sheets Patents of Addition and Divisional Applications.

IP AUSTRALIA PatentS aPPLICatIOn GuIde

(Example front pag

AusTRA LIA

Patents Act 199

ComPLe Te SPeC

IFICATIo N

INNovAT IoN PAT

eNT

IMPROVE d sHAkE

R CAn

The follo wing sta

tement is a full

descript ion of th

is invent ion,

including the best

method of perfor

ming it

known t o me: