I found a patent in the US for an invention but there isn’t one in Australia. I want to file a patent application in Australia for this invention. Can I do this?
Lawyer Answers (1): Answers from lawyers are general preliminary responses. They are not formal legal advice and cannot taken account of all your circumstances. They do not create a lawyer–client relationship.
Answer by Josephine Inge of 1Place Patents Attorneys + Solicitors, Paddington 2021 NSW
- No. Just because an inventor has not applied for a patent for their invention in Australia does not mean it is freely available for someone else to patent in Australia.
- There are two reasons for this:
- in order to obtain a patent in Australia an invention must be ‘novel.’ This test is worldwide. This means if anyone has filed a patent for the same invention anywhere else in the world it is no longer ‘novel’ under Australian patent laws; and
- the right to apply for a patent belongs only to the inventor or a party that has obtained that right from the inventor.