A patent is a form of registrable intellectual property protection, for a broad range of inventions. 

As a patent is the strongest form of IP protection, it is also the most difficult to attain! 

In fact IP Australia recommends you engage an IP Attorney if you are interested in applying for a patent.

In this article, we’ll go over the most common types of inventions you can patent.

1. Business Methods

A business method that incorporates improved or new technology for a new invention can be patentable. The technology can’t be ‘incidental’ to the invention, it has to be substantial to the invention.

For example, using pre-existing, unaltered technology in a completely new business method is not patentable. 

Also, a business ‘scheme’ is not patentable. We often hear clients ask us how they can get a patent to protect a business scheme or way of doing things they have invented. Unfortunately, protecting business schemes through patents is not an option, though there might be other ways to protect your business’ confidential information. 

In order to qualify as a patent, the invention should also address a problem.

In the recent High Court decisions in Rokt and Encompass, an invention that uses standard technology is not likely to be patentable though there is no direct test for this. 

In Rokt, a company attempted to patent their digital advertising scheme and method, which was to use technology to show an engagement offer which then led to targeted advertisements to consumers based on their website use. Rokt claimed the problem to be solved with their patent was consumer’s engagement levels with digital advertising.  

Rokt’s description of software to be used however, was very general. The High Court found the use of technology (which must be substantial to be patentable) was just a ‘vehicle to implement the scheme’. The problem in this case was technology was used in its ordinary form. 

The invention was found to be a business scheme (in particular a marketing scheme) and not a manner of invention, which is not patentable. 

2. Micro-Organisms

Patents relating to transgenic plants or animals or micro-organisms must also be able to explain how the invention can be replicated and not just produce an isolated sample.

In particular, the following can be patented;

  • Micro-organisms themselves, eg. a fungus 
  • Micro-organism products, eg. an enzyme
  • A process involving micro-organisms, eg. fermentation
  • Transgenic plants or animals
  • Mutant animals or plants

3. Computer-Related Inventions

You can also get a patent to protect the manner in which a program makes a computer function. A patent does not protect the code (this would be protected by copyright) or the design (this can be protected by ‘circuit layout rights’).

The invention must be a solution to a problem, be innovative, and be applicable in an industry rather than in an isolated scenario. 

Patents can protect both hardware and software. For hardware patents, this can include part of a computer or an accessory to a computer that improves function. 

4. Biological Inventions

There is a huge list of micro-organisms and biological materials that can get a standard patent. 

Things like cell lines and organelles, isolated bacteria and prokaryotes, and even processes using micro-organisms or enzymes can be patentable.

Other examples are isolated proteins and polypeptides, and modified organisms that are non human such as plants and bacteria.

Note patents can’t protect plant varieties – this falls under a different form of IP protection called ‘Plants Breeders Rights’ which allow a grower to deal exclusively with the plant variety they have created, whether this be selling, exporting or producing. We’ve written more on Plant Breeders Rights here.

How Long Will A Patent Last For?

This depends on the type of patent. There are two types of patents, innovative and standard. A standard patent lasts 20 years, or 25 years if the patent is pharmaceutical. For a standard patent to succeed, it has to be new, have an inventive step, and be applicable in an industry.

An innovation patent lasts only 8 years, and replaces the inventive step with an ‘innovative’ step. Innovation patents were designed to encourage inventions that improve an existing invention rather than being entirely new. However, next year innovative patents will be phased out in Australia.

When Can A Patent Be Refused?

Under section 50(1) of the Patents Act 1990 (Cth), a patent can be refused if it is contrary to law. In other words, if the primary use of that invention is found to be unlawful in any way, it can be refused.

For example, an invention that is designed to injure or kill someone will be refused on the basis that it its purpose is against the law.

The interpretation of s 50(1) also extends to uses that go against data privacy laws. So, it’s important to familiarise yourself with data privacy laws in Australia (such as the Australian Privacy Principles) and ensure your invention does not contravene any of the provisions.

The Takeaway

If you have improved on or invented something new, you may be keen to see if you can apply for a patent. If you can’t protect your intellectual property with a patent, there may be other forms of IP protection that apply to you. 

Reach out to our intellectual property lawyers at team@sprintlaw.com.au or call us on 1800 730 617 for a free, no obligation chat!

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