A patent is an exclusive right to exploit an invention. A valid patent enables the patent owner to prevent others from exploiting the invention covered by the claims of the patent in Australia.

The law relating to patents is set out in the Patents Act 1990 (Cth). This Act governs the registration and enforcement of patents in Australia and its territories.

Patent rights do not arise automatically. To obtain a patent, the inventor must file a patent application with IP Australia. If the patent application is accepted, then IP Australia will grant a patent.

Not everyone can apply for a patent. A patent for an invention may only be granted to:

• the inventor;

• a person to whom the inventor has assigned the rights in the patent;

• a person who derives title to the invention from the inventor; or

• the estate of any of the above.

However, a patent is not invalid merely because it was granted to a person who was not entitled to it.

The underlying rule is that the inventor will own the patent, unless the inventor:

• assigns the patent to someone else by written agreement; or

• is an employee who creates the invention in the course of employment, in which case the employer owns it.

Usually, the inventor’s employer will apply for the patent for an invention created by an employee, as the employer will most likely be the owner of the invention.

An independent contractor will own patent rights in the inventions created by the independent contractor unless there is a written assignment to the contrary.

Foreign citizens and foreign companies can apply for an Australian patent, even if they do not carry on business or sell products in Australia.

See Patent rights.

Broadly, the subject matter of a patent is technology. A patent is used to protect new technology.

A patent cannot be used to protect works of art, music, names, slogans, books or poems, no matter how original or unique. A patent cannot be used to protect discoveries, scientific theories and principles, pure mathematical models, intellectual information or artistic creations. These are not the proper subject matter of patents.

See Patentable subject matter.

To obtain patent protection, the patent must describe and claim:

• patentable subject matter;

• that is novel;

• that involves an inventive or innovative step;

• that is useful; and

• that has not have previously been used in secret.

There is no requirement that the invention be made or sold by the inventor.

See Requirements for a patent.

Patent rights do not arise automatically. To obtain a patent, one must apply for a patent by filing a patent application with IP Australia. A patent application is not simply a form, but a complex and detailed technical disclosure of the invention.

IP Australia will then examine the application to determine if it meets the requirements for a patent as set out above. If the application is accepted, a patent will be granted to the patent applicant.

In some cases, the application will be rejected, and no patent will be granted. In other cases, the patent applicant may narrow the scope of the patent and the patent may then be granted in a narrower form.

IP Australia publishes most patent applications and all patents. The patents database maintained by IP Australia (and similar databases of other patent offices around the world) is a good source of technical knowledge and information about competitors. These databases can be searched online for no cost.

See The patent process.

Patents are territorial. There is no world patent. A patent in Australia only protects an invention in Australia, and gives no foreign patent protection. A business can make and sell what is covered by an Australian patent in England, unless there is a corresponding English patent. Similarly, a business can make and sell what is covered by an English patent in Australia, unless there is a corresponding Australian patent.

Thus, if an inventor wants international patent protection, patent applications must be filed and granted in each country where protection is desired. There are treaties to assist with the international filing process, such as the Paris Convention and the Patent Cooperation Treaty.

See International patent protection.

A valid patent gives the patentee strong rights. Unless licensed, a person cannot make, use or sell what is covered by a valid Australian patent in Australia.

There is no defence of lack of knowledge or copying. One can infringe a patent even if unaware of the patent or the product covered by the patent. Prior to releasing a new product or implementing a new process, one should check the Australian patent database to ensure that doing so is not an infringement of another’s patent.

Even though the Patents Office may have examined and granted a patent, it does not mean that the patent is valid. A court can review the validity of a patent, and if the patent is found not to meet the requirements for a patent, the court can revoke the patent. In patent infringement proceedings, it is common for the defendant to assert that the patent is invalid and to bring a counterclaim for revocation of the patent in suit.

See Patent infringement.