What to consider before applying for a patent

If you've invented a new device, substance or process, you may choose to protect it with a patent. But before you apply, make sure you understand the following.

Make sure a patent is right for you

A patent legally protects new technology, devices, substances or processes. You'll need to be sure that your idea is new and inventive prior to applying. If it's already been protected by someone else, or if you made it public over 12 months ago, your idea won't be eligible for protection.

If you want to protect:

Understand the different types of IP

What if a patent isn't right for me?

If you decide a patent isn't the best option for you, you can either:

  1. Keep it as a trade secret: Keep your invention secret so others can't copy it. Trade secrets aren't registered with an IP office, but are protected with secrecy and confidentiality agreements
  2. Openly use and publish details about your invention: If you share the details of your invention publicly, your competitors will be free to use it for their own benefit, but no-one will be able to get patent protection. No business would hold a commercial monopoly.

Keep your invention a secret

Until you've put in a patent application, or decided on another option for your invention, keep it a secret. This gives you the best chance of securing a patent.

This means:

  • Make sure anyone involved in developing the invention understands it's confidential, and has signed a non-disclosure agreement
  • Don't demonstrate, sell or discuss your invention in public
  • Don't post your invention on social media, or anywhere on the internet
  • When you need to discuss your area of business, talk only about the problem your invention solves, rather than your solution.

What if I've already gone public with my invention?

If you've already gone public with your invention, you enter a grace period (of 12 months). This means you have 12 months to file your standard patent application.

If you try to file beyond the 12 months, the initial public disclosure can stand in the way of your application.

The grace period covers public disclosures of an invention made:

  • By you
  • With your consent
  • Without your consent.

How does it work? 

You don't need to formally apply to claim the grace period. However, if you've already publicly disclosed your invention, you'll need to file your standard patent application within the 12 month time limit.

We may take the grace period into account during the examination or opposition of your application.

Do all countries offer a grace period?

No. This means your protection options in certain countries could be limited if you choose to expand to these markets later.

Make sure your invention doesn't already exist

An invention can only be protected if it's new and inventive. So you need to make sure your invention doesn't already exist and hasn't already been protected by someone else.

Search existing patents 

Consider filing a provisional application

If you're trying to decide if you should go ahead with a patent, you could file a provisional application in the meantime. It doesn't provide you with protection yet, but it gives you 12 months to decide whether to go ahead with a standard patent application.

A provisional application:

  • Lasts for 12 months
  • Costs $110 (minimum)
  • Acts as a signal that you intend to file a full patent application in the future
  • Establishes that you're the first person to file this invention
  • Gives you the earliest possible priority date.

How provisional patents work

Decide if you need international protection

If you apply for a patent with us, you'll only receive protection within Australia.

If you'd like to protect your idea overseas, you'll need to consider patent protection in other countries where you think you'll be selling your product.

International patent protection

Need help with your patent application?

If you're a small to medium business, you could be eligible to use our free patent case manager service.

If you'd like legal advice or hands-on help with your application, you should consider engaging a patent attorney.

Apply for a patent case manager Engage a patent attorney