A patent is a contract with the government in which an inventor agrees to put their invention on the public record (for the common good) in exchange for a limited period of monopoly (exclusive use). During this time the inventor enjoys exclusive rights to exploit their invention.

A patent is a very powerful form of intellectual property right because it protects the concept or idea behind an invention. As the right is so powerful the hurdles to obtaining a patent are set very high.

A patent protects functionality (what something does and how it does it). The best way to illustrate this is by example. Let us say you were the first person to invent a chair. A patent would protect the concept of a chair as a base such as a platform or any other suitable structure to support the buttocks off the ground.

It is irrelevant whether the chair has:

• a back;
• arms; or
• 1 to 20 legs.

This is assuming the patent has been prepared in a way that:

• describes the invention as a device or apparatus to support the buttocks; and
• does not limit the device to something with a back, arms or legs as those features do not contribute to the function of supporting the buttocks off the ground.

As a patent protects functionality it can be used to protect against reverse engineering of a product. While it is often said that patents protect ideas this is not strictly correct. This is because patent laws require that a patent application fully describe an invention. The patent application needs to disclose sufficient information for someone in the relevant field to make and use the invention. An idea without more cannot meet this so-called ‘enablement’ (disclosure) requirement of the application.

A patent is only one form of intellectual property protection. The example above illustrates how patent protection differs from:

• ‘registered design’ protection that protects only the visual features (the look and feel of an article). A registered design for a chair would be limited to the way the chair is presented in the application. If it is presented as having 4 legs, a back and no arms then the design registration only protects a chair with 4 legs, a back and no arms;

• ‘copyright’ which protects a specific expression of an idea but not the idea itself. The idea of a chair only enjoys copyright protection if reduced into writing such as a written description, technical specification or design drawing. It is this tangible form (or expression) that copyright protects and not the idea itself:

• “Were the law otherwise, everybody who made a rabbit pie in accordance with the recipe of Mrs Beeton’s cookery book would infringe the literary copyright in that book” Cuisenaire v. South West Imports Limited [1969] SCR 208 (Supreme Court of Canada); and

• a ‘trade mark’ which signifies the origin (source) of goods or services. In this sense the trade mark protects a trader’s business rather than the product itself.

The Patents Act 1990 (Cth) sets out the requirements for obtaining a patent. The key requirements include:

• the invention must be for patentable subject matter, be novel (new) and contain an inventive step (not obvious);
• the patent specification (the document that describes the invention) must provide a detailed description of the invention with enough detail for a person in the same technical field to perform or create the invention; and
• the patent must include ‘claims’ that clearly define the invention. Claims are the legal part of a patent document and serve as a word equivalent of a land title claim setting boundaries around the area of monopoly.

By their very nature inventions push the boundaries. Therefore the assessment as to whether any invention is patentable will depend very much on the detail.

This Legal Guide on Patent Law provides a person wishing to apply for a patent with information about the requirements for a patent and some basic information about applying for a patent. Before making important decisions it is advisable to obtain legal advice specific to your situation. LegalEagle’s™ free directory profiles all lawyers in Australia. You can use it to Find a Lawyer near you.

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