Frequently Asked Questions
You need to check the relevant legislation in your State and Territory, as the rules are different in each jurisdiction.
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What is a patent?
- A patent is one form of intellectual property right.
- It protects the idea behind an invention.
- A patent gives the patent‑holder the right to exclusive use of the patented invention and to exclude others from using it.
- This includes the right to stop others from using, selling, offering to sell or importing the same invention that has been patented in another country.
- A patent registered in Australia is only protected in Australia.
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Can an employee register a patent?
- This will depend on the terms of employment of an employee.
- The general position is that an employer owns all of the intellectual property rights created by an employee in the course of employment.
- However, a key consideration is “what was the employee employed to do?”
- This will require an investigation into the role and responsibilities of the employee.
- The employee may own the intellectual property rights underlying the invention if they did not have a duty to perform the tasks that resulted in the invention.
- However if the employee had a responsibility to perform those tasks then there may be an explicit or implied term of the employment contract that assigns any underlying intellectual property rights created by the employee to the employer.
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What types of invention can be patented?
- Inventions that may be patented are:
- machines;
- articles;
- processes;
- methods such as methods of making products or performing tasks;
- some types of computer programs; and
- compositions of matter.
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What is ‘prior art’?
- Any invention that has been disclosed to the public before the date on which you file your own patent application is known as ‘prior art.’
- It is irrelevant where the prior art has been disclosed or how it was disclosed.
- For example prior art will be recognised whether it was disclosed in a patent application in the USA, an online blog or in a newspaper.
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If someone infringes my patent who prosecutes them?
- It is the responsibility of the person who holds the patent to enforce their rights.
- IP Australia does not enforce patent infringement.
- If you find that someone has infringed your patent you should obtain legal advice as soon as possible.
- The actions that you may take can range from:
- sending a letter to the infringer warning them that you will take action against them if they do not stop what they are doing;
- negotiating a resolution with the infringer which resolves the matter; or
- court action.
- It may be necessary to obtain an injunction to prevent the infringer from using your intellectual property.
- You can use our Phone a Lawyer service to request that your choice of a specialist intellectual property lawyer or an accredited patent attorney call you for a preliminary legal consultation if you think you may need legal advice.
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Can a patent be given to another person?
- An owner of a patent can assign their rights in a patent to another party.
- The other party may be an individual or company.
- The transfer of a patent may be achieved by a letter of assignment, deed of assignment, a declaration, a merger document or a probate document.
- The document that affects the transfer of rights must then be lodged with IP Australia along with details of the transferor and transferee and the patent being transferred.
- You can use our free and anonymous Ask a Lawyer service if you have a particular issue you want to know more about.
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