Frequently asked questions on patents

The Institute of Patent and Trade Marks Attorneys of Australia has secured the following information from the World Intellectual Property Organization (WIPO).

• What is a patent?
• What does a patent do?
• What kind of protection does a patent offer?
• What rights does a patent owner have?
• Why are patents necessary?
• How is a patent granted?
• Who grants patents?
• How can a patent be obtained worldwide?
• Where can I find patent information?
• How can I find the patent laws of various countries?
• Can I patent my software-related invention?
• Can I discuss the details of my invention with a potential investor before filing a patent application?

What is a Patent?

A patent is an exclusive right granted for an invention - a product or a process that provides a new way of doing something, or offers a new technical solution to a problem. 

What does a patent do?

A patent provides the owner of the patent protection for the invention for a limited period (usually 20 years).

What kind of protection does a patent offer?

Patent protection means the invention can’t be commercially made, used, distributed or sold without the patent owner's consent. These patent rights are usually enforced in a court, which, in most systems, can stop patent infringement.

A court can also declare a patent invalid if it’s successfully challenged by a third party.

What rights does a patent owner have?

A patent owner can decide who may - or may not - use the patented invention for the protected period. The patent owner may give permission to, or license, others to use the invention. The owner may also sell the right to the invention to someone else, who will then own the patent.

Protection ends when a patent expires, and the invention enters the public domain.

Why are patents necessary?

Patents recognise individuals’ creativity and rewards them for their marketable inventions. These incentives encourage ongoing innovation and product development.

How is a patent granted?

Step One in securing a patent is the filing of a patent application, generally containing the invention’s title and an indication of its technical field.

It must include the background and a description of the invention - in clear language, and with enough detail to enable an individual with an average understanding of the field to use or reproduce the invention.

These descriptions are usually accompanied by drawings, plans or diagrams.

The application also contains various "claims" - information which determines the extent of protection granted by the patent.

Who grants patents?

Patents are granted by national patent offices or by regional offices that cover a number of countries.

Under regional systems, an applicant seeks protection for the invention in one or more countries, and each country decides whether to offer this protection within its borders.

The WIPO-administered Patent Cooperation Treaty [link to page with treaty description] (PCT) helps applicants obtain protection in a large number of signatory countries and regions. It extends the time by which it’s necessary to request protection in those countries and regions required.

How can a patent be obtained worldwide?

At present, no “world” or “international” patents exist.

Generally, you must file a patent application, and a patent can be granted and enforced in each country in which you seek to protect your invention. In some regions, a regional patent office accepts regional patent applications, or grants patents - which have the same effect as applications filed or patents granted - in that region’s member countries.

A resident or national of a Contracting State of the Patent Cooperation Treaty (PCT) can file an international application under the PCT. A single international patent application has a similar affect as national applications filed in each designated Contracting State of the PCT.

However, to obtain patent protection under the PCT system in designated States, a patent shall be granted by each designated State to the claimed invention contained in the international application.

Procedural and substantive requirements for the granting of patents, as well as fees involved, are different from country to country, and region to region.

Where can I find patent information?

Some national and regional patent offices provide free Internet facilities that allow you to search patent applications and granted patents. A list of URLs of web-based databases is available here.

WIPO also provides access to:

• A comprehensive electronic database on published international patent applications filed under the PCT system since 1978
• Fully searchable text of descriptions and claims for PCT International Applications filed from July 1998.

Where Internet-based information isn’t available, patent information may be consulted on paper, microfilm or CD-ROM at national or regional patent offices.

While Internet-based patent databases have significantly helped access patent information, the complexity of patent documents and the technical and legal skills required to fully understand them means you may wish to consider engaging a professional patent attorney to conduct a high-quality patent search.

WIPO Patent Information Services (WPIS) provides free-of-charge services for users in developing countries who wish to obtain technical search results in relation to their inventions.

How can I find the patent laws of various countries?

The Collection of Laws for Electronic Access (CLEA) provides easy access to intellectual property legislation from a wide range of countries and regions, as well as to intellectual property treaties administered by WIPO.

Many national or regional patent offices’ web sites provide information concerning national or regional legislation. A list of URLs of national and regional intellectual property offices is available.

Can I patent my software-related invention?

Procedural and substantive requirements for the granting of patents differ from one country/region to another, particularly with regard to software-related inventions.

Practices and case law regarding patentability of software-related inventions can also vary significantly from country to country. In some countries, “inventions” within the meaning of patent law must have a “technical character” and software, as such, is not considered a patentable invention. However, such requirements do not exist in other countries, allowing software generally to be patentable subject matter.

WIPO and the Institute of Patent and Trade Mark Attorneys of Australia (IPTA) recommend you consult:

• A practicing lawyer specialising in intellectual property
• The intellectual property offices of those countries in which you are seek protection.

A list of URLs and a directory of national and regional intellectual property offices is available

Although computer programs may also be protected under copyright, this type of protection in principle extends only to expressions - not to ideas, procedures, methods of operation or mathematical concepts as such.

Can I discuss the details of my invention with a potential investor before filing a patent application?

It is important to file a patent application before unconfidentially disclosing the details of your invention to anyone.

Any invention made public before an application is filed generally would be considered ‘prior art’. (While the definition of ‘prior art’ is not unified at the international level, in many countries it consists of any information which has been publicly disclosed in writing or orally anywhere in the world).

In countries which apply this definition of ‘prior art’, an applicant’s public disclosure of the invention before filing a patent application would prevent him/her from obtaining a valid patent for that invention; such invention wouldn’t comply with the “novelty” requirement.

However, some countries allow for a grace period, providing a safeguard for applicants who disclosed their inventions before filing patent applications. The novelty criteria may be interpreted differently depending on applicable law.

If you need to disclose your invention to a potential investor or a business partner before you’ve filed a patent application, you should have these parties sign a confidentiality agreement.

The Institute of Patent and Trade Mark Attorneys of Australia (IPTA) is the peak professional body representing Australian patent and trade mark attorneys.
Phone Australia: 03 9819 2004. Email: mail@ipta.org.au

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