A patent is the right granted for any new device, method, process or substance. A patent is legally enforceable and gives the patent owner the right to commercialise the invention for the lifetime of the patent. To be granted a patent, you are required to disclose to the public how your invention works. You do this by filing a patent application that we will publish. Applying for a patent is an important step for a designer and/or inventor as it provided a level of protection for their work.
There are two types of patents available in Australia. These being a standard patent (including pharmaceutical patents), and innovation patent.
A standard patent gives long-term protection and control over an invention. It lasts for up to 20 years from the filing date of a complete application. The invention claimed in a standard patent must be new, involve an inventive step and be able to be made or used in an industry. An inventive step means that the invention is not an obvious thing to do for someone with knowledge and experience in the technological field of the invention. The invention must differ in some way from existing technology, but the difference must have resulted from something more than the simple application of published information and/or standard background knowledge.
Before a standard patent is granted, the complete application has to be examined by the Patent Office of the Federal Government organisation IP Australia (Intellectual Property Australia). Granting of a standard patent can take from six months to several years.
An innovation patent lasts up to 8 years and is designed to protect inventions that do not meet the requirements for standard patents. It is a relatively quick and inexpensive way to obtain protection for your new device, substance, method or process. An innovation patent is usually granted within a month of filing the complete application. This is because there is no examination before it is granted. The innovation patent requires an innovative step rather than an inventive step.
An innovative step exists when the invention is different from what is known before and the difference makes a substantial contribution to the working of the invention. The benefits of an innovation patent are that it offers the same level of protection as a standard patent in preventing others from copying an invention and, unlike a standard patent, you only pay to have an innovation patent examined when you need to stop others from copying your invention.
The innovation patent is granted without examination, which means validity of the application is not verified. This may make the patent more difficult to sell or license until the patent has been examined and certified. You are also unable to go to court to enforce the innovation patent until it has been examined and certified. Innovation patent can only be applied for in Australia which means applications need to be applied for separately in other countries if you want to enforce the patents overseas.
A trade mark is used to distinguish the goods and services of one trader from those of another. A trade mark is a right that is granted for a letter, number, word, phrase, sound, smell, shape, logo, picture and/or aspect of packaging. A registered trade mark is legally enforceable and gives the trade mark owner exclusive rights to commercially use, licence or sell it for the goods and services that it is registered under. The difference between trade marks, business and company names and domain names causes confusion sometimes. Registration of these entities does not give you any proprietary rights. It is only a trade mark that can do this.
Copyright protection is free and automatic in Australia and protects the original expression of ideas, and not the ideas themselves.
Common works protected by copyright are:
- sound recordings
Copyright also protects originally created:
- typographical arrangements
- media broadcasts
- computer programs
- compositions of other people’s work such as academic journals or CD compilations
The moment an idea or creative concept is documented, on paper or electronically, it is automatically protected by copyright. Because it is automatic in Australia, there is no official registry or application process for copyright protection.
Copyright protection is provided under the Copyright Act 1968 and gives you exclusive rights to license others in regard to copying your work, performing it in public, broadcasting it, publishing it and making an adaptation of the work. Rights vary according to the nature of the work. Copyright doesn’t protect you against independent creation of a similar work. Legal actions against infringement are at times complicated by the fact that a number of different copyrights may exist in some works – particularly films, broadcasts and multimedia products. Copyright laws differ from country to country, however Australia is party to a number of treaties that increase the copyright protection of international works. Although a copyright notice with the owner’s name and date is not necessary in Australia, it can help prove your ownership of the copyright. Using a copyright notice can also act as a deterrent to potential infringers. Depending on the material, copyright for literary, dramatic, musical and artistic works generally lasts 70 years from the year of the author’s death or from the year of first publication after the author’s death. Copyright for films and sound recordings lasts 70 years from their publication and for broadcasts, 70 years from the year in which they were made.