For a limited period (typically 20 years) a patent holder has the exclusive right to exploit a patented invention in the country where the patent is granted.
For Australia this means no third party may make, sell, market or import into Australia a product covered by an Australian patent without the explicit permission of the patent holder.
Why secure a patent?
In the absence of a patent for an invention, third parties are generally free to copy or reverse engineer the invention.
What are the commercial benefits of a patent?
For manufacturers investing in R&D a patent is a vital defence mechanism for combatting cheap imitations from low cost manufacturing countries.
A strong patent portfolio further is not only vital for defending a manufacturer’s market position or investment in R&D, it also enhances the value of the manufacturer’s business should it become the target for acquisition.
Another strategic consideration when deciding to build a patent portfolio is that such portfolio could be leveraged to gain access to technology of other innovative manufacturers by way of a cross-licence agreement.
Occasionally manufacturers stumble upon a potentially valuable invention, but which is not core to the manufacturer’s business.
Such invention potentially could be patented and licensed to third parties for commercialisation.
Having a third party commercialise non-core technology could generate a welcome revenue stream for growing the manufacturer’s core business.
For many manufacturers, however, simply being able to state that a product is patented is sufficient to keep unsophisticated imitators at bay is reason enough to pursue patent protection.
What is patentable?
Manufactured products and manufacturing processes are generally patentable, provided they are novel and non-obvious.
In order to be novel, an invention must be new both in Australia and overseas. Any commercial use of an invention can be prejudicial to the patentability of the invention. Often manufacturers may have seen a product overseas and which is not available in Australia.
At times such manufacturers may be under the impression that they may pursue patent protection in Australia. Such notion is false as the invention no longer satisfies the novelty criteria for valid patent protection.
How does one secure a worldwide patent?
A common misconception amongst manufacturers is that one can obtain a single patent which spans the globe.
The fact of the matter, however, is that patents are territorial rights and that one is required to apply for patent protection in every jurisdiction where protection is required.
Should one first test the market and then apply for a patent?
The answer is an emphatic “no”. In most countries, any non-confidential disclosure will destroy the novelty and hence the patentability of an invention.
A handful of countries, including Australia, provide for a grace period to enable a valid patent application even after a product has been shown to the public.
Invoking the grace period provisions are fraught with danger and should only be considered a last resort.
Having seen a patent number on a product, how can a manufacturer ascertain what is covered?
Information on patents can be accessed via IP Australia’s AUSPAT database:
Every patent has a patent specification which describes the nature of the invention and the features of the invention covered by the patent.
By studying the specification a manufacturer will be able to learn the nature of the invention ascertain the scope of protection of the patent.
For further enquiries contact André Meyer of Meyer West IP: andre@meyerwestip.com.au
