Patents

What is a patent?

A patent is a limited term monopoly, granted by the government of a country to the owner of an invention. It is granted in exchange for public disclosure of the invention in a document called a patent specification. This document describes the invention in sufficient detail to enable a person skilled in the field to perform the invention after the patent expires or lapses without an undue amount of experimentation and without taking an inordinate length of time.

How long does a patent last?

In Australia and most other countries standard patents have a term of 20 years, provided periodic renewal fees are paid. Renewal fees are usually payable annually, although the starting year varies from country to country.

What rights does a patent give?

A patent gives its owner the right to stop others from making, using or selling the invention while the patent is in force. It is not necessary that there be copying of a patented invention: if someone else independently invents the same invention, that person can still be blocked by a granted patent. However, grant of a patent does not provide its owner with a right to market or use the invention, as there may be patents held by other parties which would be infringed by these activities. A patent owner wishing to exploit a patented invention must also comply with any applicable laws or regulations.

Most patents are national in scope: an Australian patent only has effect in Australia and its territories. Patents may be obtained in most countries.

What is patentable?

Patents are granted in many fields of endeavour for both products (eg. machines, pharmaceuticals) and processes (eg. methods of making an article, methods of pest control). Generally speaking, patentable inventions belong to the useful arts as distinct from the fine arts. Mere mental processes or discoveries are not patentable. Some business systems and software are patentable in some countries, including Australia. In some jurisdictions, such as NZ, methods of medical treatment are not patentable subject matter.

Patentable inventions must be novel or new. For a standard patent in Australia, the invention must not have been used or sold or published in a document anywhere in the world, before the filing date of the earliest patent application for the invention (‘priority date’).

It is important to appreciate that, in most countries, the rule means that the invention itself cannot have been disclosed to others before the priority date. In Australia (but not NZ) and the United States, it is possible to still file a valid patent application up to one year after such disclosure, but this ‘period of grace’ does not apply in most countries. There are some other limited exceptions to the general rule.

Patentable inventions must also involve an inventive step or be non-obvious to a person experienced in the area of technology. For an Australian patent, obviousness is determined by considering the common general knowledge in the technical field in Australia, or this knowledge in combination with one or more earlier-published documents that would have been found, understood and regarded as relevant by such a person. Currently, obviousness is not tested by the NZ patent Office, although it may be assessed during opposition and patent revocation proceedings.

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