Perhaps you have recently stumbled upon what you are convinced is the idea of the century. Maybe after years of painstaking research, you’ve finally produced an invention that’s poised to take over the world. Before breaking out the champagne, be wary of the fact that a wonderful idea or invention does not necessarily translate to commercial or financial success. Here are some things you need to know in order to use patents to effectively safeguard your business interests.
Know what a patent is
It goes without saying that in order to know how a patent can help your business strategically, it is crucial to know what exactly a patent is. A patent is defined as the exclusive legal right to exploit an idea or invention, for instance by selling, licensing, making use of or importing it. Patents offer protection to the usability or functionality of a particular invention. If you are looking to protect an attractive design or product with a distinctive appearance, on the other hand, then designs registration might serve your needs better. Patent protection typically lasts for twenty years from the day you file your application and during the period of protection grants you exclusive rights to your idea or invention.
Different types of patents
Two basic types of patents exist in Australia. Standard patents offer twenty years of protection and the patent application must go through a rigorous testing process before it can be granted. On the other hand, innovation patents are easier to obtain as registration does not require the rigorous examination that is needed to register standard patents. However, innovation patents have a term of just eight years and, should you need to enforce them, they must first successfully undergo examination to be ‘certified’.
What is patentable?
If your idea, product, machine or process is new and can potentially be classified as inventive and useful, there is a good chance it might be patentable. Manufacturing methods, new chemicals or substances or any novel or improved updates to the same might all be patentable. A legal advisor specialising in intellectual property can assess your innovation and provide an opinion on patentability.
How to get a patent
To apply for a patent, you should either be the inventor, a person or organisation who has employed the inventor or someone who owns the rights to the idea or invention to be patented. If you are one of the above, your patent attorney will then be able to provide an opinion as to whether your patent application is likely to be successful based on whether it is new, contains an inventive step (in comparison to any prior publicly available information you may be aware of) and has utility. If your attorney is of the opinion that your innovation is patentable, he or she will then prepare all the paperwork necessary for filing an appropriate patent application. A provisional patent application is a common first step and within twelve months this should be followed up with a standard patent application. The process requires an intimate understanding of the documentation required, the responses needed and the deadlines which must be adhered to. Not more than a year after filing your first domestic patent application, you can file for protection overseas as well. This is crucial if you intend to enter international markets. You might choose to rely on international treaties or apply directly for patents in accordance with each country’s requirements.
Important things to remember
Before you are successfully granted a patent, it is crucial to remember that there are several things that can derail a future application. Foremost among them is that, as a patentable idea or invention must be new, ensure that you do not publish anything about it, discuss it publicly, sell it or perform demonstrations prior to filing your patent application. If you accidentally publicly disclose information about your innovation prior to filing your application, consult a patent attorney immediately in order to file a complete application within 12 months to preserve your rights to the invention in at least some countries, including Australia.
Patent infringement
Merely obtaining a patent is not enough to protect your commercial interests. Your attorney should also help you to chart out a strategy to protect your interests in the event of patent infringement. If you discover your patent has been infringed at any time, it is crucial to take immediate action, which may range from having your attorney send a ‘cease and desist’ letter to, eventually, hauling the perpetrator to court.
Patents are very useful tools for the safeguarding of commercial interests, but they must be deployed prudently and strategically in order to be effective.
Article by Declan McKeveney, Principal at Fisher Adams Kelly, a leading intellectual property firm servicing Australasian innovators.
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