Apply for a patent to protect your invention from being copied

This IP First Response website has been designed to help IP rights holders navigate IP infringement and enforcement by making it visible, accessible, and to provide information about the factors involved in pursuing different options. It does not provide legal, business or other professional advice, and none of the content should be regarded as recommending a specific course of action. We welcome any feedback via our IP First Response feedback form and by emailing us.

What is it?

Applying for a patent is one way to protect a new product, process or method that you’ve developed.

A patent application is a formal request to IP Australia to be granted exclusive rights over your invention. If granted, a patent can stop others from making, using, or selling your invention in Australia without your permission.

Patents are typically used for inventions that are new, useful and involve an inventive step. This could include anything from a physical product to a chemical process, mechanical tool or software-enabled system.

You don’t need a granted patent to start selling your product, but a patent can strengthen your legal position and give you more control over how your invention is used by others.

It is important to note that disclosing your invention can create issues later on for your patent application – if you are considering applying for a patent, it is important to avoid publicly disclosing your invention.

You can apply for a standard patent or a provisional application first—each has different costs, benefits and timeframes. Provisional applications are often used as a first step to secure a priority date while you refine your invention or seek investors.

A provisional application does not offer any patent protection, and simply acts as a placeholder while you decide whether to continue with the patenting process. A provisional application gives you 12 months to consider your options, and most importantly, it establishes your priority date.

If you wish to proceed with the application process (and enter the examination stage), you will need to file a standard application. Importantly, you can use the priority date from your provisional application in your standard application. This is of particular value if there is a competitor who has filed a patent application – if they are both directed towards a similar process, you would have a greater chance of being granted the patent owing to your earlier priority date.

It is important to note that any features claimed in your standard application must have also been disclosed in your provisional application if you wish to claim the earlier priority date.

What are the benefits?

Gives you exclusive rights to your invention for up to 20 years.
Stops others from legally copying, using or profiting from your invention.
Builds your bargaining power with investors, licensees or competitors.
Can increase the commercial value of your product or business.
May deter others from trying to copy your idea once they see it’s protected.
Positions you to take legal action if suspected infringement occurs.

What are the risks?

Filing a patent may result in details of your invention becoming public.
The process can take years and may not result in a granted patent.
Competitors may try to challenge your application or patent.
Costs may be significant, especially if you use a patent attorney or seek international protection.
A granted patent only protects you in the country where it was filed.
You may need to enforce the patent yourself if someone uses your invention without permission.

What are the possible outcomes?

Your patent is granted, and you receive exclusive legal rights.
Your application is rejected due to lack of novelty, inventive step or other criteria (such as a lack of support for the claims, or other issues with the specification such as a lack of clarity).
Your patent is opposed by a third party, leading to a hearing or negotiation.
You withdraw the application or let it lapse due to cost, complexity or commercial decisions.
You license or sell the patent to another party.

What might the costs be?

Patent costs vary depending on the type of application and whether you use professional support.

Provisional patent application: From around $110 if self-filed with IP Australia (as discussed above, a provisional application does not offer any patent protection, and simply acts as a placeholder while you consider your options).
Standard patent application: Filing starts at $400, with potential additional costs for examination, maintenance and legal advice.
Patent attorney fees: May range from $2,000 to over $10,000 depending on complexity.
Ongoing fees: Annual renewal fees start at $300 at the 4^th anniversary and steadily increase to $2815 for the 19^th anniversary (i.e. for the 20^th year).

If you seek patent protection in other countries, additional international filing and translation fees will apply.

How much time might be involved?

The patent process can take:

A few days for a provisional application.
6 months to 2+ years for a standard patent (longer if examined late or challenged).
Up to 5 years or more in complex cases.

If you want quicker protection while exploring your options, filing a provisional application may give you breathing room for 12 months.

How much is this used?

Over 30,000 patents are filed annually in Australia.

Who can use this?

Anyone who has developed a new invention that is not yet publicly disclosed.
Individuals, businesses or researchers who want exclusive rights to their innovation.

Who’s involved?

The applicant (you or your business).
IP Australia, who examines and grants patents.
Optional: a registered patent attorney who can draft and file your application.
Optional: competitors or third parties who may oppose the patent.

What do you need to proceed?

A clear description of your invention—what it is, how it works, and how it’s different.
A decision on whether to file a provisional or standard application.
An account with IP Australia’s online services.
Budget to pay application and examination fees.
Optional: get help from a registered patent attorney.
A plan for international protection if you need overseas rights.