A guide to applying for your patent
8
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 up to 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.
Please note that you are required to pay annual maintenance fees if you want to
keep your patent in force
.
The following table provides a quick overview of the major differences between a standard patent and an
innovation patent.
Your invention
Innovation Patent
Be new, useful and involve an
Standard Patent
Be new, useful and involve and
must:
innovative step
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 formalities
requirements (note a ‘granted’
innovation patent cannot be
enforced)
The application is examined and
found to satisfy the requirements of
the Patents Act.
Examination:
Optional: Examination can be
requested by you or a competitor to
clarify your legal rights
Mandatory: as certain requirements
must be met before patent is
granted
Certification:
Must comply with certain
requirements as determined by an
examiner. 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 priority date and
again at acceptance
Protection period:
Eight years, if annual fees paid
20 years, if annual fees are paid (or
up to 25 years for pharmaceuticals)
How long does the
process take?
One month for grant. Six months if
you request examination.
Six months to several years
depending on circumstances
How much
does it cost?
(Fees are subject
to change)
Approximately $1500 including
maintenance fees over 8 years (not
including advisor fees)
Approximately $9000 including
maintenance fees over 20 years
(not including advisor fees)
!
A guide to applying for your patent
9
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 over 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 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 that have a longer development and commercialisation cycle, such as pharmaceuticals, 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 may save you time and
money by delaying examination until you really need it, for example if you need to enforce your patent.
Standard patents must be examined. There is a fee that needs to be paid for examination to happen.
If you don’t pay the fee when asked you will lose your rights.
Once you have identified the best patent type, you need to determine the right type of three
application options.