If the thinker in you has ever wondered How to Patent an idea in Australia and how much Does it Cost? remember that in today’s fast-paced, innovation-driven technology arena, just as it is important to come up with and develop new and innovative ideas (i.e. a successful mobile App idea), it is also crucial to protect those developed ideas or concepts by patenting them under your name or your business name.
In this article, we break down everything you need to know about protecting your idea. Amongst other things, we explore: how to patent an idea, how to patent an idea in Australia and also how much does it cost to patent an idea for a Mobile App.
It should be noted that Mobile App Ideas can only be eligible for patents if they are demonstrably innovative, new and you will also need a working prototype to qualify.
Table of Contents:
- What is Intellectual Property?
- What are the differences between patents, copyrights and trademarks?
- Can I Patent my Invention?
- What is a Patent?
- Importance of Patents in Australia
- Benefits of Patents
- Keep it a Secret
- Types of Patents in Australia
- Innovation Versus Standard Patents in Australia
- Steps to Patent an Idea in Australia
- Patents in Australia?
- How Long Will It Take to Obtain a Patent?
- How to Apply for an International Patent?
- How Much Does It Cost?
- What Happens after a Patent Is Granted?
What is Intellectual Property (IP)?
The World Intellectual Property Organization (WIPO) defines Intellectual property as creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.
Across the world, IP rights are offered protection by the law through patents, copyright and trademarks.
What are the differences between patents, copyrights and trademarks?
Patents encourage innovation and the protection of the commercial interests of those who apply for patents whereas copyrights are automatically vested with the creator of any original work. Trademarks help secure business viability by protecting elements such as words, phrases and symbols so that others cannot commercially gain by using them.
With Intellectual Property being a vast subject area, for the benefit of digital innovators, in this article we will focus on how to develop your patents and discuss the steps that should be taken from ideation to obtaining the final patent.
Can I Patent my Invention?
You should if it is:
- New – It must not have been developed or registered before
- Useful – An device or process that is useful to society or industry
- Innovative – A previously unknown device or process
You should not if it is:
- A Gimmick
- Has no real beneficial use to society or industry
- Fails to update existing devices or processes in a meaningful way
- Is not very innovative rather similar to an existing device or process
What is a Patent?
According to IP Australia – the Australian Government agency that administers intellectual property rights and legislation relating to patents, trade marks and designs: “A patent is a right that is granted for any device, substance, method or process that is new, inventive and useful.” In essence, a patent is a legally enforceable exclusive right to commercially exploit the invention or concept for the life of the patent within a prescribed area.
“A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application.”
World Intellectual Property Organization (WIPO)
- Patents are territorial rights only applicable in the country or region in which a patent has been filed and granted, in accordance with the law of that country or region. If you wish to obtain global rights then you must make a separate, or in some instances collective, patent application in each region you wish to obtain protection.
- In principle, patent protection means that your invention or Mobile App cannot be commercially made, used, distributed, imported or sold by others without the owner’s consent. This is possible as the owner has the exclusive right to prevent or stop others from commercially exploiting the invention.
Importance of Patents in Australia
The growing importance of IP and patent rights was recently recognised in the Australian Federal Government’s 2021 Budget, as part of its digital economy strategy to stimulate investment, enhance productivity and create jobs.
The ‘Patent Box Scheme’ is set to further encourage innovation in Australia by taxing the corporate income of medical and biotech entities (previously at 30 and 25% – depending on scale), at a concessional effective corporate tax rate of 17%, with the concession applying from income on or after 1, July 2022.
Benefits of Patents
- Patents contribute to the success of new inventions and the protection provided by giving the holder the right to stop others from manufacturing, using and/or selling your invention without permission.
- Patents furthermore allow the rights holder to license someone else to manufacture your invention on agreed terms or even take legal action against individuals or companies that benefit from your invention without your permission.
- Patents also encourage and motivate inventors to continue their research, develop new and innovative products, exploit new technology and promote the transfer of technology as well.
Should I Patent my Invention?
If you have an invention (Mobile App), method or process that has been created by you and have kept it a secret and a search reveals no other similar technology then you should consider applying.
This is especially important if the commercial returns outweigh the time, effort and money required to acquire and maintain it and depending on the resources you have to manage it.
Keep it a Secret…
It is important to note that if you demonstrate, sell or discuss your invention in public before filing an application, you may not be granted a patent.
The date you first file a patent application for your invention or Mobile App 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.IP Australia
Types of Patents in Australia
The two types of patents granted in Australia are the Standard Patent and the Innovation Patent.
- If your invention can be classified as being new, involves an inventive step and is able to be made or used in an industry then it falls under a Standard Patent. A standard patent offers long-term protection and control over an invention and lasts for up to 20 years from the filing date of your application.
- The innovation patent generally necessitates an innovative step rather than an inventive step. If your invention is classified as an incremental advance on existing technology rather than a groundbreaking invention, then it falls under an Innovation Patent.
An innovation patent lasts up to eight years* and is more suited for an invention with a short market life that might be superseded by newer innovations, such as computer-based inventions.
Innovation patents are a relatively quick and inexpensive way to obtain IP protection especially for small and medium-sized enterprises that may bring to the table an innovative step that makes a substantial contribution to the working of any invention.
- The classification of your invention or Mobile App across one of the above patent types solely depends on the particular nature of the advance made by your invention over what is already accepted in the same field.
* Effective February 2020, innovation patents are being phased out and the last day to file is 25 August 2021. Existing innovation patents and innovation patents filed on or before 25 August 2021 will continue in force until their expiry. By 26 August 2029, all innovation patents will have expired.
Innovation Versus Standard Patents in Australia
|Innovation patent||Standard patent|
|Your invention must:||Be new, useful and involve an innovative step.||Be new, useful and involve an inventive step.|
|The application should include:||A title, description, up to five claims, drawings (if applicable), an abstract and forms.||A title, description, any number of claims, drawings (if applicable), an abstract and forms.|
|A patent is granted if:||The application satisfies formality requirements (note: a ‘granted’ innovation patent cannot be enforced unless examined).||The application is examined and found to satisfy the relevant requirements of the 1990 Act.|
|Examination:||Optional. Examination can be requested by you or anyone else.||Mandatory. The relevant requirements of the 1990 Act must be met before it is granted. Can only be requested by the applicant.|
|Certification:||Is given if the innovation patent complies with the relevant requirements of the 1990 Act in examination. Only after certification can the patent be enforced.||N/A|
|Publication in the Australian Official Journal of Patents:||At grant and again at certification.||18 months from earliest priority date and again at acceptance.|
|Protection period:||Up to eight years if annual fees are paid.||Up to 20 years if annual fees are paid (or up to 25 years for pharmaceuticals).|
|Process time?||Approximately one month for grant. Six months for examination if you make a request.||Six months to several years depending on circumstances.|
Source: IP Australia
Steps to Patent an Idea in Australia?
It is important to note that ideas themselves cannot be patented but instead they must be transformed into what can be easily understood as an invention, method or process.
- Applicants must first determine if their invention (Mobile App), method or process qualifies. For your application to be successful, your invention must be ‘new, useful and inventive or innovative’.
- Applicants can then undertake a patent search that aims to discover if your particular invention, method or process has been obtained by another entity.
- If this search is successful, applicants can then make a provisional application, followed by a complete Standard or Innovation patent application.
- Provisional applications are especially useful if your invention, method or process figures in a highly competitive industry where constant innovation demands the earliest possible date to protect your IP rights. Provisional applications also allow applicants up to 12 months to determine if your invention is worthy of further time, money and effort investment.
- All applications will generally include the relevant titles, descriptions, drawings and abstracts of your invention, method or process as applicable.
- Having received your application, the process of granting a patent begins with an Examination. This is when a patent officer will examine in detail the merits of your particular application reviewing patent specifications and considering whether the invention as defined in the submission claims, qualifies for protection.
In summary, the main stages of applying for a patent in Australia are:
Invention > Search > Provisional Application > Compete Application (Standard or Innovation) > Checking > Examining > Publishing > Granting and Accepting
The above process may vary depending on the nature of your application.
Patents in Australia?
For those keen on understanding more about patents in Australia, all related applications are handled by the Australian Government agency – IP Australia.
Inventors must make their applications for a patent following the prescribed guidelines, rules and regulations.
The application should include:
- A written description of your invention: allowing others to see how it works and it could be made
- Drawings: to illustrate your description
- Claims: precise legal statements that define your invention by setting out its distinctive technical features
- An abstract: a summary that includes all the important technical aspects of your invention
- For those wanting to simplify patent applications, it is also possible to engage the service of a attorney who will be able to expertly and efficiently navigate your application. Engaging an IP professional can greatly reduce the risk of serious mistakes and improve your commercial value in the long term.
How Long Will It Take to Obtain a Patent?
Although certain emergency orders may be obtained on a case-by-case basis, on average, Innovation Patent Applications can take one month to grant. Standard Patent Applications can take anything from six months to several years as per the particular application.
How to Apply for an International Patent?
Through the World Intellectual Property Organisation’s Patent Cooperation Treaty (PCT) applicants can seek protection internationally for their inventions. The PCT provides applicants the ability to simultaneously seek protection for an invention in a large number of countries.
How Much Does It Cost?
If you are reading this and wondering How Much Does it Cost? you should note that the cost can vary depending on the scale and complexity of the particular invention or application.
- In Australia, Provisional Patent Applications range from $110 – 210 whereas a Standard Application ranges from $370 – 570 and an Innovation Application ranges from $180 – 380 (Source: IP Australia)
In addition to the above administrative fees, any patent application will also incur extensive additional charges and costs related to both its application and examination stages.
Costs vary significantly depending on factors such as the complexity of your invention and any objections raised by examiners. Applicants should also bear in mind potential legal fees charged by patent attorneys that often run into 1000s of dollars.
How much does it cost to patent an idea in Australia?
Spread over its entire 21-year life, an Australian Standard Patent for a single mechanical invention typically costs in the vicinity of $30,000 + GST (an average of about $1,450 + GST per year).
An Innovation Patent for the same invention would likely cost about $9,000 spread over it’s 8-year life (an average of about $1,150 per year).
What Happens after a Patent Is Granted?
Your patent journey is only half complete when you are granted a patent. It is up to the holder to continuously pay annual maintenance fees if you want to keep your patent in force.
- It is also the responsibility of the holder to take legal action to enforce/challenge the patent if you feel your rights are being infringed upon.
Final Word on How to Patent an Idea in Australia
Patents, when granted correctly, offer inventors protection for their ideas and can empower both small and large companies with the opportunity to secure and exercise their Intellectual Property rights in order to financially benefit from them.
Do you have an App Idea?
Have you ever had an App Idea and thought, I wish I could make an App like that? Elegant Media is an Australian tech company that specialises in smartphone App Development. We always sign Non-Disclosure Agreements to protect your idea, and then design, develop and release Apps under your own name. Contact us for a free consultation, so that you can achieve your dream of launching an app!