Based on our investigation into the recent court and IP Australia decisions on patentability of four Aristocrat software innovation patents, we present three actionable steps in this article for patent attorneys and innovators to reduce subject matter objection risk for software patents from the outset. This article also gives an example of a certified software innovation patent without the subject matter objection raised during certification.
How to patent a new idea in Australia?
Patenting a new idea in Australia or internationally is a relatively straightforward process when working with an Australian patent attorney. The patent process is not one to be embarked on without the advice of a patent attorney as your patent application needs to establish a watertight foundation for the IP rights you are seeking.
Simplified Patent Process
6 common questions prior to filing a patent application
1. Do I need to file a patent application?
A patent application allows you to license or sell your new idea
Without a patent application, you cannot (normally) sell or licence your new idea as there is no reason why a third party would not just copy it without paying you any fee.
A patent normally allows your business to operate at a higher profit margin
In most businesses, profits are very much tied to the margin created between the sale price of its products and the expenses associated with supplying them. A small difference in price point can lead to a large difference in profit margin. That is, if the cost to supply a product is $10 and it is sold for $11, there is a 10% profit margin, but if it were to be sold at $12, there is a 20% profit margin which equates to a 100% increase in profit.
If a patent is granted on your new idea, you will be able to stop a third party copying it. Where you are able to stop a third party copying your new idea, you will have a monopoly over the sale of the new idea and can therefore dictate the sale price. This is why products that are patented generally sell at much higher profit margins than products that are not patented.
2. How do I make money out of my patent application?
Filing a patent application does not automatically result in any income. Businesses create income. The question therefore becomes, how can your business take advantage of (i.e. commercialise) your patent application once filed?
Patent applications are normally commercialised by:
- Sale of the patent application and associated know-how to a company for a once-off payment
- Licensing the patent application for a defined royalty stream (e.g. a passive income stream as products are sold)
- A combination of the above
- Manufacturing and selling your new product
- Having someone else manufacture your new product and then start selling it?
Do you need further advice about commercialisation planning?
We are the only patent attorney firm in Australia with a full service, in-house, patent commercialisation consultancy – Slipstream Commercialisation. This means that after filing an Australian provisional patent application, if you are unsure how to best progress, we can assist you further by connecting you with Slipstream Commercialisation.
3. Can my new idea be patented?
There are 3 basic tests a patent application needs to meet in order to be successfully granted:
- It must be new
- It must not be obvious; and
- It must be patentable subject matter
To get an idea of the answer to A & B, your patent attorney will normally request IP Australia to perform a patent search based on your provisional patent application. This patent search is called an International-Type Search and in our experience, is by far the best value-for-money patent search you can get done at an early stage in the patent process.
To answer question C, in Australia, there is very little that is excluded so far as what can be patented. For example, software patents and methods of medical treatment can generally be patented. All you need to do is provide your patent attorney with a clear and concise brief and they can advise you as to whether your idea is patentable subject matter in Australia.
You may be wondering, how you can trust your patent attorney with your idea? Australian Patent Attorneys have a legislated obligation under the Australian Patents Act 1990 (Federal Law Act) to maintain confidentiality of your idea.
Why Baxter IP Patent Attorneys?
We offer a free half hour consultation. During this consultation, we are normally able to advise whether your new idea includes patentable subject matter.
Click here to contact one of our experienced patent attorneys to find out more about whether your new idea includes patentable subject matter.
4. What type of Australian patent application should I file?
Whilst there are numerous types of patent applications that can be filed, the majority of new entrepreneurs start with a provisional patent application and then file a PCT International patent application. For completeness, there are 4 main types of patent application that can be filed in Australia:
- Australian Provisional Patent Application (lasts 1 year, affordable, provides opportunity for further invention developments to be included later)
- PCT International Patent Application (lasts 1.5 – 2.5 years, covers about 50 countries, most attractive to investors)
- Australian Standard Patent Application (lasts 20 years)
- Australian Innovation Patent Application (lasts 8 years, most affordable, for new but otherwise obvious ideas, provides protection in Australia only)
Why Baxter IP Patent Attorneys?
- We will assess your new idea at our first meeting and provide you without cost or obligation, a free Intellectual Property Strategy Report
- Our patent attorney team is highly experienced, your work will not be handled by juniors
- Many in our team of patent attorneys have industry experience having worked in-house at well known research and development companies, CSIRO and at IP Australia.
- We specialise in International patent protection:
- We prepare provisional patent applications thoroughly to an international standard based on our experience in drafting in both a US & European style
- We brainstorm to attempt to anticipate loopholes and then seal them up resulting in stronger and more defensible patents
5. How much does a patent application cost?
Baxter IP provides fixed-fee or capped-fee quotations for preparing and filing patent applications. Typically, for a single idea:
- A provisional patent applications can range between $3,300 and $7,000
- An Innovation patent application can range between $3,000 and $6,000
- A PCT international patent application can range between $9,000 and $15,000
The amount quoted will depend on technology, complexity, level of detail required and timeframe.
Click here to contact one of our experienced patent attorneys to find out more about how you can protect your idea and for a quote.
6. How do I get a patent application filed? What are the steps?
We’ve tried to make the patent application process as straightforward as possible – here’s what needs to be done:
How to patent?
The international patent process
(Click on the image to zoom)
The entire patent process on how to patent an idea or a product can be expressed simply as 4 distinct stages. To learn more about each stage please click on one of the links below: