Australian Patents
Australian Patents
The patenting process in Australia
​
Obtaining a patent is essentially a two-step process, with the two steps being spaced 12 months apart. The first step is to file an Australian provisional patent application for your invention, which lasts for 12 months. This is done so that you can test the market for your idea and to obtain the earliest possible date from which to claim rights to your invention - much like an option to protect your invention.
The second step is to file a complete patent application within 12 months of filing the provisional patent application in Australia. You also have the option, instead of only filing in Australia, to file overseas at this stage.
Advantages of first filing a provisional patent application
​
Complete patent applications are more expensive to file than provisional patent applications and it is not possible to add additional matter to a complete patent application once it has been filed.
The reason for this two-step approach to patents is therefore to give you time to determine if there is a market for your invention, and also to give you time to refine your invention into its "perfected" form prior to complete patent application.
Furthermore, it must be borne in mind that any modifications that you make to the invention as contained in the provisional patent specification must be kept secret until those modifications have been captured in a second provisional patent application or are included in the eventual complete patent application.
​
Rule of thumb: keep improvements secrets until they have been captured a patent application.
Obtaining enforceable patent rights in Australia
It is important to note that a provisional patent application does not provide you with an enforceable right (i.e. you are not allowed to take steps to stop other people from exploiting your invention based only on the provisional patent application).
A provisional patent application is merely a mechanism for protecting your invention with commercial potential. You only obtain an enforceable right once a complete patent application for your invention has been filed AND a patent has been granted by the Patent Office. However, should your competitors start copying your invention before a patent has been granted, it is possible in certain cases to expedite the granting of your patent. Patents go through a long period in which they are examined by patent examiners.
These are Patent Office employees with advanced technical degrees and access to the best databases in the world. They will review your patent application and do a search to see if any aspects of your patent must be trimmed back because of prior inventions that disclosed those aspects before you filed your patent application.
Marking patented products with patent numbers
In most countries, if a provisional patent application has been filed, the article may be marked with the words "Provisional Patent applied for" followed by the patent application number.
​
If a patent has been granted an article may be marked with the words "Patented" followed by the patent number. It is an offence to mark an article as above if a patent application has not been filed, or if a patent has not been granted.
Cost of Australian patent applications?
There are three categories of expenses for the typical patent application: (1) attorney fees; (2) patent office (governmental) filing fees; and (3) drawing fees. Of the three, the most significant expense is the attorney fees.
We prepare and file your patent application for a fixed fee, based on the complexity of your invention and the work required to prepare a quality patent application to protect it.
For inventions of low to medium technical complexity, typical costs for preparing and filing an Australian provisional patent applications with technical drawings usually start at around $5000, depending on the complexity of the invention.
​
The more complex the invention, the more it costs to write the patent application. Our cost estimates include all government fees and taxes. However, after consulting with you, we will be able to provide you with an fixed quote for preparing and filing your patent application.
We will only proceed once we have received your express instructions to do so and we'll take no further actions in this regard should you not wish to obtain patent protection for your invention.
Filing of a complete patent application in Australia only Ñ–s usually about the same price as the provisional application if we prepared the provisional application, but it may be higher if you have made further developments or refinements to your original idea that were not captured the provisional application.
At the time of filing your complete application, you will have a much better idea of the commercial potential of your invention and whether it is commercially sensible to file a complete patent application(s).
While there is a lot of flexibility in the patent system, if you miss the 12-month deadline for filing a complete (AU or PCT) application, then you will have forfeited any chance you may have had to keep your protection in place.
​
It's also worth bearing in mind that any improvements that you have made that weren't covered in your original application, can be saved by filing a further provisional application in the 12-month period (or at the time of filing the complete application), provided you had kept those aspects of the idea secret until such time as the additional patent applications have been filed.
When the patent application is being examined, the patent examiner will find prior documents which will affect your patent rights and which might narrow your patent protection. These "prior art" documents need to be overcome and to do this we will need to file arguments and also changes to the patent application. This may happen more than once, depending on feedback from the Patent Examiners.
​
