What do you have to do to get a patent?

You don’t need to re-invent the wheel to get a patent. Typically, a technical point of difference over what is publicly known before you file your first patent application is enough.

And the point of difference doesn’t need to be a radical change or involve any great science. For a standard – 20 year –  patent, a non-obvious point of difference is required. That’s a pretty low bar. Many new products and processes are patentable. For ‘second tier patents’ such as Australia’s innovation –8 year – patent and utility models elsewhere, the bar is even lower.

Once you have an invention, the next step is to file a patent application. The invention should be kept secret until then.

The text and drawings of the application are called the ‘patent specification’. It’s not a simple document – a patent attorney is the right person to help at this stage. It’s critical to get the wording right. Your patent protection will be based on what is in the specification. If that is less than you have invented, you might end up with less patent protection than you deserve.

Beyond the first patent application you have plenty of choices as to how to proceed. Within the first 12 months, patent applications in other countries can be filed and linked up to the first patent application.

In most countries, patent applications eventually face examination. Usually that will be within a few years of filing. Patent examination involves a patent examiner – government official – assessing whether your invention, as defined in the claims, qualifies for patent protection.

The examiner will typically search for evidence that similar things previously existed, and raise various objections. It is routine to respond to objections with argument, such as pointing out your invention’s points of distinction, and/or amendments to the patent specification.

If you can get to the point that the examiner has no objections, the application will then pass examination. In Australia that’s called ‘acceptance’. In the US it’s called ‘allowance’. Typically, a patent is granted on the application within a few months of it passing examination.

It can take a few years from your first patent application to a granted patent, but you don’t need to wait all of that time to start making, selling and/or using your invention. Generally speaking, once your first patent application is filed you can do all of those things without harming your patent rights.

The patent application process can be sped up, although usually it’s best to simply allow the process to follow its normal course. Amongst other benefits, this defers costs.

Ben Mott, Principal Mechanical Engineer & Patent Attorney, Wadeson

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