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How to protect your big idea with a patent 07.12.2016

You have come up with a brilliant idea and are eager to commercialise, but before you go disclosing your idea to anyone consider whether your idea can be patented.

A patent is a legal document that grants the owner the rights to  the invention to the exclusion of others. In Australia, a patent can have either an 8 year term (innovation patent) or 20 year term (standard patent). To be patentable, there needs to be a new (novel) and non-obvious invention (that is, it must be the result of some ingenuity and not just an obvious solution to a problem) and disclosure of a ‘method’ of putting the idea into practice.

The process of applying for a patent starts with the filing of an initial patent application with a further complete patent application filed around 12 months later. The patent application can be for Australia only or be an international application whereby a patent is sought in multiple jurisdictions. 

The patent application will be examined by the patent office in each jurisdiction to determine whether the claims of the patent application qualify for patent protection. As part of the examination process, amendments may be required to the patent application in order for the application to qualify for protection.  Once the patent application has been examined and accepted by the patent office, it will be published prior to grant. Publication provides an opportunity for any third party who considers that the application does not qualify for protection to oppose the grant of a patent.  Once a patent is granted, it is enforceable against third parties who are infringing the monopoly afforded by the patent.

If you think you have developed something patentable you should seek advice at an early stage.

Thanks to our Authors from Gilbert + Tobin:

John Lee, partner and Vanessa Farago-Diener, lawyer


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