To Patent Or Not To Patent?

So you’ve got a great idea for a new invention. Something that will make that food-materializing microwave from Fifth Element look like a lousy toaster oven. Congratulations! You’re going to be a squillionaire! But what do you do next?

First, you’ll want to patent your design to ensure that no one else can profit from your hard work and genius.

Applying for a patent from IP Australia can be a confusing and time-consuming process, but is essential if you don’t want anyone else to steal your ideas.

patent is a legal document which gives you (the inventor) exclusive rights to make and sell your product for the life of the patent (usually 20 years). It also grants you the ability to protect your invention through the legal system, preventing other inventors from manufacturing the same product.

Anyone can apply for a patent, but there are some rules and restrictions on what can and cannot be patented.

You can’t patent:

  • Ideas or theories: People come up with outstanding ideas for useful inventions every day, but never get around to actually designing or creating them. Unfortunately you can’t patent your thoughts. To seek protection from competitors or duplicators you must physically produce a prototype and be able to demonstrate how it works.
  • Naturally occurring things: If you can find your product in nature, then you probably can’t patent it. It’s therefore not possible to patent raw resources such as timber, stone or produce, however crops that have been genetically modified can be patented.
  • Art, music and media: Patents are for products and items that can be manufactured and sold. Artistic works are instead protected by copyright.
  • Branding, logos and designs: As above, these are not physical products. The words, symbols, pictures and/or sounds associated with a company or brand are protected by registering a trade mark.
  • Something that already exists: It may seem obvious, but you can’t patent something that has already been created and patented. You also cannot simply re-design an existing item like changing its shape or colour. For this reason, IP Australia suggests your first step should be to search patent databases for similar products before beginning the application process, or contact a solicitor to advise whether or not you might be able to register your patent.

Should you patent your idea?

If your invention passes the above requirements, it must still meet a handful of eligibility criteria to be considered for a patent. It must be:

  • Useful: The item has a practical application or is a specific process with an end result.
  • New or novel, and distinctly different from current products on the market: If you are re-inventing an existing product, it must be deemed to be significantly better or otherwise different than existing versions.
  • Explainable: You must be able to demonstrate exactly what your product does, how it works and what problem/s it solves. You may also be required to provide diagrams or technical schematics.
  • Legal: This surely goes without saying. Applications for products that are illegal or support criminal activity are just not going to get approved. Sorry.

Let’s do this!

If your product still checks out, you may well be the next Hills Hoist or Victa Mower magnate!

But before you start mentally decorating your mansion or listing names for your second yacht, you still have some work to do! Thomas Edison knew what he was talking about when he said: “Genius is one percent inspiration and ninety-nine percent perspiration.”

If you’re ready to get started, all the application forms can be downloaded online. Check out IP Australia’s patent application checklist to get cracking.

Be aware the patenting process is not for the faint-hearted and can be a lengthy and complicated ordeal for those who are unfamiliar with legal jargon and technicalities. IP Australia recommends seeking professional advice to ensure the right steps are taken in the correct order.

Sajen Legal are experts in Intellectual Property law including patents, copyright and trade marks. Our litigation team can also assist you if believe your patent has been infringed, or defend you if you are sued by another party for breach of one of their patents.

Contact us today to find out how we can help launch your invention into the world, or read more about Intellectual Property and why it’s worth protecting yours.


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