-- JonathanMo - 14 Sep 2015

The different types of applications and patents

Provisional application

The first step in filing a patent application in Australia is often the lodgment of an application, accompanied by a provisional specification, at the Patent Office. The provisional specification describes the invention and (in most cases) its date of lodgment determines the 'priority date', on which date the invention must be new.

Complete application (leading to standard patent)

Within 12 months of lodging the provisional application, a complete application should be lodged at the Patent Office. Where an invention is in development when a provisional specification is lodged, further provisional specifications can be lodged in the 12-month period to include additional material. All such provisional specifications can be combined in a single complete specification, which concludes with a series of claims. The claims define the monopoly sought - both the particular embodiment of the invention as described in detail in the specification, and variations.

Divisional applications

It is possible to file a patent application that claims the same priority date as one previously filed, and claims matter disclosed in an earlier application. These divisional applications have a maximum term of 20 years, common with the parent application, but must be filed prior to sealing of the parent complete application.

Innovation patent

The innovation patent was introduced by the Patents Amendment (Innovation Patents) Act 2000 (Cth), to replace the former petty patent or utility patent (as it is sometimes known elsewhere) system. An innovation patent is granted quickly in comparison to a standard patent, only needing to pass a 'formalities' check; the standard patent examination is either deferred or replaced by a registration system.

An innovation patent still needs to show that the invention claimed is a method of manufacture, is novel, is useful and has not been secretly used beforehand. The inventive step requirement of the standard patent is replaced by an 'innovative step' test, which has a much lower standard, although an innovation patent must still vary from the prior art base in a way that makes a substantial contribution to the working of the claimed invention [PA s.7(4)].

An innovation patent is limited to a maximum of five claims, and can still be opposed after grant. It can only be enforced if it is examined in substance and certified [PA s.120(1A)]. It has a much shorter term of protection of only eight years [PA s.68].

Plants, animals and the biological processes for their generation are not patentable as innovation patents [PA s.18(3)].

The main advantage of the innovation patent is the significant cost saving over a standard patent.

Patents of addition

An application for a patent of addition may be made for a single improvement in, or modification of, the main invention in an earlier patent. The applicant must be the same person who lodged the earlier patent application, or a person authorised by the original applicant.