How do I protect my invention?

From Kane Williams, McKays Solicitors

If you have come up with something new, useful and inventive or innovative, then generally what you need is a patent. Millions of patents are granted throughout the world each year. In 2015, global patent filings rose to 2.89 million (from 2.68 million in 2014). Looking locally, the Australian Patent Office is currently receiving almost 30,000 standard patent applications each year.[1] These patents span across the full range of industries.

What is a patent? 
A patent gives you a monopoly over the invention, with the right to stop anyone else making or selling it within the country or countries that you obtain the patent in. 

The patent system fosters and encourages good ideas that have been converted into inventions. The basic principle is that in exchange for you telling the world what the invention is and how to make it (which you do in a public patent application), you receive a limited monopoly over that invention (normally 20 years). 

This is perhaps easiest understood by taking a common example. You walk into the chemist with a script. The pharmacist asks you whether you are fine with the cheaper generic. In this situation, a big pharmaceutical company has spent millions getting a drug to market. Before taking it to market, it obtained a patent. In the patent, it disclosed how to make the drug and what it was useful for. While competitors now know this information, they have to sit on it, hands tied, until the patent runs its course. In the example, the exclusive monopoly period (25 years for pharmaceuticals) is over and it is 'free for all'. The pharmaceutical company will have made its money during the first 25 years and has also had that time to cement its reputation so that it can keep the money coming in after that.

What do I need to be careful of?
One of the biggest mistakes that you can make if you are interested in a patent is to disclose it prematurely. Until you have filed the patent, you need to keep the invention strictly confidential. If you are going to get someone to assist with the invention (build, design, advise, test, etc), you need a suitable confidentiality deed with them. If you do not have this and you tell someone about the invention, show it to them, publicly test it, etc, then you may lose the ability to obtain a patent.

Anything else I need to know?
There is a great deal to consider that we cannot cover in this short article. For example, you need:

  • comprehensive patent searches to determine if the patent is new and inventive in comparison to what has come before it

  • to determine if the patent will be worth it or if you can adequately protect it in some other way

  • to consider what entity will hold the patent, and whether that will be the same one that makes/sells the product, etc

  • to look at the brand you will use and protecting that with a trademark

  • to weigh up your patent options (standard vs innovative, whether a provisional is beneficial, just filing in Australia or also overseas?)

It may seem overwhelming, but that is why we recommend contacting an experienced intellectual property solicitor who can guide you through the process.

Lastly, be careful about putting your patent off - would hate for a competitor to get in first. It really is 'first in, best dressed' when it comes to patents.