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Patently obvious: 7 things every business owner should know about patents (but usually doesn’t)


‘Patents’ and ‘patent pending’ are much more than words bandied about on late-night infomercials. Like other tools in the intellectual property stable, patents are intended to protect an inventor’s product or method.

As with copyright and trademark, patents can initially seem daunting. However, the following seven tips will set you on the path to understanding how patents apply to your business.

Remember: none of this information should be construed as legal advice. Always seek out a qualified professional in relation to your own circumstances.

1. What is a patent?

A patent is essentially a legally enforceable monopoly right to exploit the subject of the patent (the invention) for its life.

The right is granted to the owner in return for disclosing the invention — whether it’s a product or method.

A patent must be applied for and meet certain requirements before it’s granted.

Once the life of the patent is over, other parties are free to commercially exploit the invention.

2. Types of patents

There are two types of patents in Australia: complete and innovation.

Complete patents provide protection for a period of up to 20 years; the process to obtain one can take considerable time and money.

Innovation patents provide protection for eight years; the process to obtain one is typically faster and less expensive than for a complete patent.

As there are some differences in the requirements and processes for the two types of patents, for simplicity’s sake this article focuses on complete patents.

3. Criteria for obtaining a patent

To satisfy the criteria for obtaining a complete patent, your invention must be:

  1. Novel. This essentially means it can’t have been done before — anywhere in the world.
  2. Not obvious to someone with knowledge and experience in your specific field.
  3. A ‘manner of manufacture’. Your invention must be a device, substance, method or process.
  4. Useful. Your invention must do what you say it does.

4. Act quickly

If you’re too slow to file for a patent, someone else may get there first. If you fail to obtain a patent before commercialising the invention, other parties can produce the same product without having to obtain a licence or pay you a royalty.

5. Think before speaking

Don’t disclose your invention to others before you’ve sought the advice of a qualified patent attorney. Disclosing your invention before you’ve taken the proper steps to protect it may render it unpatentable, leaving it freely available for all to use.

6. Do your research

You’ll have heard the phrase: ‘Prior preparation prevents poor performance’.

Likewise, doing your research in advance and seeking professional advice early will prevent you from falling foul of the problems that face many entering the world of patents.

These include: spending time and money on patenting a product that no one wants; trying to patent a product that’s not commercially viable; or making a product that infringes someone else’s patent.

There are simple searches you can do to ensure the commercial viability of your product. In addition, your patent attorney can search databases to determine whether your invention has already been patented.

7. Look before you leap

Before proceeding down the path of patenting, make sure you’re aware of the costs and time involved.  It can often take years before an application is successful.

Patents can be expensive — especially if you want to protect your invention in overseas jurisdictions — and renewal fees apply. patents are often allowed to lapse because they are no longer commercially viable to maintain.

Devita Pathi is an intellectual property lawyer and trade mark attorney.  She has over 7 years experience in the legal profession. She is the author of numerous articles including an award winning article on copyright and design laws. Devita has a particular interest in assisting small and start-up businesses to identify, protect and commercialise their intellectual property.