A standard patent gives you long-term protection and control over an invention. It lasts for up to 20 years from the filing date of your application (or up to 25 years for pharmaceutical substances).
The invention claimed in a standard patent must be:
- involve an inventive step
- be able to be made or used in an industry.
Your invention must differ in some way from existing technology. This difference must be something more than the simple application of published information or standard background knowledge.
Depending on the circumstances, examination can take from six months up to several years. We recommend that you seek professional assistance before applying for a patent.
Also read: The two main types of patents in Australia
Your patent application must include:
The purpose of a specification is to describe and claim your invention.
Unlike a standard or innovation patent specification, a provisional specification is not required to have claims.
We recommend that you follow our best practice guide for presenting an Australian specification or WIPO's PCT Applicant Guide to ensure your specification complies with legislative requirements.
You can search for examples of specifications online through our patent search or WIPO's PATENTSCOPE. You can search using filters including accepted patent applications.
A description describes your invention in detail. All standard, innovation, provisional and international applications must include a description. The description will:
- fully describe your invention so that others could reproduce it from the information given
- give the best method of performing your invention
- be in English
- be on single-sided A4 pages
- not include photographs
- allow sufficient margins (i.e. at least 2.5 cm from the left) around the edges of all pages.
A claim is a statement that defines your invention or inventive concept. All standard and certified innovation patents must include claims in their specification (claims are optional for provisional application).
A claim should:
- define clearly what you are seeking patent protection for. The words of your claim must distinguish your invention from what is already known to establish its inventiveness
- set out all the essential technical features of your invention or inventive concept
- be consistent with and supported by the description
- be clear and concise
- be written as a single sentence.
For a standard patent you can have any number of claims. A certified innovation patent can have only five claims.
Please note that a standard patent application with more than 20 claims at acceptance will incur additional fees.
Patent attorneys are experts at writing claims, which is why we recommend using their services.
There are two types of claims, independent and dependent.
An independent claim is one that does not refer to any other claim. It must define those features that are essential to the invention or inventive concept.
A standard patent application can have more than one independent claim but they must all relate to the same invention or inventive concept. For example, if your invention is a new product you may be able to include independent claims for the product, a new process specially adapted to make the product, and perhaps a new apparatus to carry out that process.
A dependent claim references one or more previous claims.
You should ensure that the introduction of each dependent claim refers to the earlier claim. You can do this by repeating the introductory words of the independent claim and referring to the claim by number. For example, ‘The table leg of claim 1 further characterised by...’.
The extra features specified in dependent claims would be those that you consider desirable or optional to your invention or inventive concept. They are sometimes used as a safeguard just in case the invention in the independent claim is not new, or the independent claim is shown to be invalid after a patent has been granted.
They may also be of value when negotiating a licence agreement with a manufacturer.
Don't try to claim too much
Your claim must be reasonable and define only one invention or inventive concept.
If you try to claim too much, it may be difficult to obtain or defend those rights. If you claim too little you may miss out on valuable opportunities.
You should use drawings wherever possible to help describe your invention.
Drawings must be in black ink and drawn using either drafting instruments or computer software.
Significant features of the drawings should be clearly labelled by number(s) and described in the body of the specification.
An abstract is a brief summary of your invention that will help the reader to quickly identify key features. It should be included at the back of your specification.
Gene sequence listings
Your application may include genetic characterisation of any known genes relevant to the use or characterisation of your inventive concept.
The characterisation may be at the level of gene sequence, function or restriction pattern.
In patent applications relating to transgenic plants and animals, the characteristics of the gene introduced into the organisms must be described (preferably including the complete sequence of the gene) as well as the best method of transformation, regeneration and selection of the transformed materials.
Patents are not available for gene sequences, DNA, RNA or nucleic acid sequences that replicate the genetic information that exists in any human's or in any other organism's DNA blueprint or genome. This is regardless of whether the genetic material was isolated or manufactured.
You can however gain patent protection for synthetic DNA or nucleic acid sequences, but only where the genetic information does not exist in any human's or any other organism's DNA blueprint or genome.
Making changes or additions to your application
You are able to amend your Australian patent application or your PCT application in certain circumstances.
Some common problems
Many patent applications filed without professional help are not successful for one or more of the following reasons:
- The original patent specification does not describe the invention properly.
- The applicant disclosed it to the public before applying for a patent. As it has been publicly disclosed, the invention is deemed ‘not new’.
- The invention is not new because the applicant disclosed it to the public after filing a provisional application that did not adequately describe the invention.
- The invention is not new when compared with things that are already known. For example, the invention has been published in an earlier patent document.
- The application is for something that is not patentable, such as a principle or idea, rather than its practical adaptation.
Take a look at our Patent application guide (PDF, 3.89 MB).This application guide is designed to help you prepare and file a patent application.
The patent application process can be complex, we recommend that you seek professional assistance before applying for a patent.
This content was first published on www.ipaustralia.gov.au.
Licensed from the Commonwealth of Australia under a Creative Commons Attribution 4.0 International Licence.