What Can Be Patented?

If you’ve created a new product, process or piece of tech, you’re probably wondering: can I patent this in Australia?

That’s a smart question to ask early. Patents can be powerful for startups and growing businesses - they can stop competitors from using your invention and help you attract investment. But not everything can be patented, and the rules are specific.

In this guide, we’ll break down what is (and isn’t) patentable in Australia, common pitfalls that can cost you protection, and practical steps to take before you talk to a patent attorney. We’ll also cover alternatives like registered designs, trade marks and trade secrets, so you can choose the right IP strategy for your business.

What Counts As A Patentable Invention In Australia?

Under the Patents Act 1990 (Cth), an invention must tick several boxes to qualify for a standard patent in Australia. In plain English, your invention needs to be the right kind of thing (subject matter), genuinely new, inventive, useful and fully described.

1) Patentable Subject Matter (The “Right Kind Of Thing”)

Australian patent law protects inventions that fall into broad categories like a product (device, substance, composition), a process (method), or a new use or improvement of a known product or process. Lawyers call this a “manner of manufacture.”

Examples that can qualify include:

• A mechanical device with a new configuration that delivers a technical advantage
• A chemical composition or pharmaceutical formulation with a new active profile
• A manufacturing process that produces measurable efficiency or quality gains
• Computer-implemented inventions where software solves a technical problem in a technical way (e.g. a novel data encoding method integrated with hardware constraints)

2) Novelty (Newness)

Your invention must be “new” worldwide at your filing date. If it’s already publicly disclosed anywhere (a journal article, a website, a trade show demo, a public GitHub repo), it’s not novel.

Tip: Australia has a limited 12‑month grace period for some inventor disclosures, but relying on it is risky. The safest path is to avoid public disclosure until you’ve filed.

3) Inventive Step (Non-Obviousness)

Even if your idea is new, it must also be non‑obvious to a skilled person in the field.

In practice, ask yourself: would a typical expert reading known materials and using common sense arrive at the same solution without creativity? If the answer is “probably,” it may fail this test.

4) Utility (Usefulness)

The invention must work as promised. If the core claim can’t achieve the stated result, it’s not patentable.

5) Sufficiency And Best Method (Full Description)

Your patent specification has to teach others how to perform the invention across its full scope and disclose the “best method” known to you at filing. Skimping on detail can invalidate your patent later.

What Cannot Be Patented?

Some things are out of bounds, even if they feel innovative. Understanding the exclusions helps you shape a protection strategy that actually works.

Excluded Subject Matter

• Abstract ideas and schemes: Pure business methods, mental processes, mathematical algorithms or rules “as such” without a technical implementation are generally not patentable. Add a concrete technical contribution (e.g. a new way data is processed at the hardware interface) and the picture can change.
• Discoveries: Finding a natural phenomenon or a scientific principle isn’t enough. You need a practical application that delivers a technical advantage.
• Human beings and biological processes for their generation: Methods of creating human beings are excluded. Following High Court decisions, certain naturally occurring genetic materials “as such” are not patentable.
• Information presentation: Merely presenting information (e.g. a new infographic layout) without a functional technical effect is typically excluded.

Common Grey Areas

• Software: Computer-implemented inventions can be patentable where they provide a technical solution to a technical problem, not just an abstract idea moved onto a computer. The specification must explain the technical improvement - not just business logic.
• Medical methods: In Australia, methods of treatment and diagnostic methods are generally patentable (unlike in some jurisdictions). However, ethics and public policy can still shape scope.
• Combinations: Combining known parts in a predictable way often fails the inventive step test. You’ll need a synergistic or unexpected technical effect.

Patents Vs Other IP: Should You Patent, Or Use A Different Tool?

Patents aren’t the only way to protect innovation. Choosing the right IP toolset protects your competitive edge and budget.

When A Registered Design Might Be Better

If your advantage is in how a product looks (shape, configuration, pattern or ornamentation), consider a registered design rather than a patent. It’s generally faster and cheaper, and protects visual appearance rather than function. For physical products with distinctive aesthetics, a Registered Design Application can be a smart move alongside or instead of patenting.

When A Trade Mark Is The Right Move

Brand names, logos and taglines aren’t protected by patents - they’re protected by trade mark rights. A trade mark distinguishes your goods or services in the market and can be a core asset for growth. If brand is your moat, it’s worth looking at how to register your trade mark early.

When To Use Copyright

Copyright automatically protects original literary, artistic and some software code works in Australia. It does not protect ideas or functional concepts - only the expression. For user interfaces, marketing collateral or documentation, copyright can sit alongside other IP rights.

Keeping It A Trade Secret

Some innovations are best kept confidential (e.g. formulas, algorithms, processes). If you go this route, lock down access internally and use a strong Non-Disclosure Agreement before discussing the concept externally. Trade secret protection can last indefinitely if secrecy is maintained, but unlike patents, it doesn’t protect against independent discovery or reverse engineering.

Licensing And Ownership Planning

Whatever IP you create, think ahead about ownership and revenue. If your team or contractors are developing the invention, ensure the business owns it via an IP Assignment. If you plan to monetise by letting others use your technology, a tailored IP Licence will set clear commercial terms and restrictions.

Practical Steps Before You File A Patent

You don’t need to be a patent expert to prepare well. A few smart steps now will save time, cost and stress later.

1) Keep It Confidential

Avoid public disclosure before filing. Share details only on a need-to-know basis and use NDAs in pitches, pilots and supplier discussions. For overseas prospects or partners, consider whether you need an international NDA that works across jurisdictions.

2) Document Your Invention

Record the problem, your solution, prototypes, test data, and iterations. Clear technical notes help a patent attorney draft strong claims and a complete description (including your “best method”).

3) Do A Preliminary Search

Search patent databases and the web to sense-check novelty and focus your claims. This won’t replace a professional search, but it will sharpen your brief and reduce surprises.

4) Think Commercial First

Patents are business tools. Consider market size, copycat risk, and whether patent protection in key markets aligns with your budget. If your competitive edge is short-lived, a faster path like designs, trade marks or secrecy might give a better return.

5) Engage Specialists

Only a registered patent attorney can draft and prosecute a patent application for you. However, the broader legal strategy matters too - from ownership and licensing to brand protection and privacy. If you need help aligning your IP roadmap with your commercial goals, our team can connect you with an Intellectual Property Lawyer to coordinate the moving parts around your patent process.

Filing Options: Provisional, Standard, And PCT (In Brief)

Once you’ve decided to pursue a patent, your patent attorney will guide the filing pathway. Here’s the high-level picture so you know the lingo.

Provisional Application

A provisional application secures a priority date for your invention but doesn’t get examined or granted. It buys you up to 12 months to refine the invention, test market fit, approach investors, and decide where to seek protection. You’ll need to file a complete application (in Australia and/or via the international route) within that period.

Standard Patent (Australia)

This is the main Australian patent right. It lasts up to 20 years (longer for some pharmaceuticals) from filing, subject to renewal fees. The application will be examined for novelty, inventive step and other requirements. Your attorney will handle responses and claim adjustments during examination.

PCT (International Route)

The Patent Cooperation Treaty (PCT) lets you file a single international application and later enter specific countries or regions (like Europe, the US, Japan). It doesn’t grant a “world patent,” but it gives you time and a consolidated process before national filings.

Innovation Patents (Phased Out)

Australia’s innovation patents (which protected incremental improvements) have been phased out for new filings. If you still hold one, it remains enforceable for its term, but new applications aren’t possible.

Common Pitfalls That Undermine Patent Protection

Plenty of strong inventions are weakened by avoidable mistakes. Here are the big ones to avoid.

Public Disclosure Before Filing

Pitching without an NDA, posting to your blog, or presenting at a conference can destroy novelty. Even beta trials can count as public if not controlled. Build confidentiality in from day one.

Under-Describing The Invention

Thin specifications can invalidate a patent. Ensure your description enables the invention across its full scope and includes your best method. This often means sharing more technical detail than feels comfortable - your patent attorney will balance disclosure and claim strength.

Claiming The Wrong Thing

Claims define your legal protection. Claim too narrowly and competitors design around you; too broadly and your patent may not withstand examination or enforcement. Iterating claim strategy with your attorney - informed by your market plan - is essential.

Ownership Gaps

If employees or contractors contributed and you don’t have clear written assignments, you may not own the invention. Lock down ownership with the right contracts and, where needed, backfill with an IP Assignment.

Forgetting The Rest Of Your IP

Patents don’t cover brand or aesthetics. While you progress your patent, consider parallel steps like a design filing for the product look, and trade mark protection for your brand.

How Do Software And AI Inventions Fit In?

Software patents are possible in Australia, but the bar focuses on technical contribution. A mere business scheme implemented in code is unlikely to be patentable; a technical improvement (e.g. a novel compression technique or a new control algorithm that produces measurable performance gains) has a better chance.

For software businesses, combine patent strategy with commercial levers that are equally important, like robust product terms and licensing models. Clear user terms and licensing mechanics help you control how customers and partners can use your technology - for example, through a tailored Software Licence and EULA.

Commercialising Your Invention: Build, License, Or Partner?

Once you secure IP rights (or have a filing in progress), think about the best path to market.

• Build and sell products: Keep manufacturing in-house or work with contract manufacturers, and use supplier agreements and quality controls.
• License your technology: Let other companies bring your invention to market in exchange for fees or royalties - governed by a tailored IP Licence.
• Partner or JV: Co-develop and share rights and revenue. Nail down ownership, background IP, new IP and exit terms in your contracts.

Whatever route you choose, align your IP paperwork with your business model to avoid costly renegotiations later.

When To Speak With A Lawyer (And What To Bring)

You’ll typically work with a patent attorney for the application itself. Around that core process, there are several touchpoints where commercial and legal planning go hand-in-hand - and getting advice early can save money.

• Ownership and contracts: Ensure your employment, contractor and founder arrangements vest IP in the business, with backup via an IP Assignment if required.
• Confidentiality workflows: Put practical NDA processes in place for demos, pilots and investor conversations using a standard Non-Disclosure Agreement.
• Brand strategy: Plan parallel filings or timing for a trade mark so your product can launch with a protected brand.
• Look-and-feel: If aesthetics matter, consider a design registration alongside your patent path.
• Go-to-market terms: If your invention is software-enabled, ensure your licence and EULA reflect your pricing, usage limits and update policy.

Bring a short summary of the problem you’re solving, how your solution works, what you’ve built or tested, any public disclosures, and a high-level commercial plan. This helps your advisors spot risks and opportunities quickly.

Key Takeaways

• To be patentable in Australia, an invention must be patentable subject matter, novel, involve an inventive step, be useful, and be fully described (including your best method).
• Abstract ideas, mere business schemes, discoveries and purely informational presentations aren’t patentable; software can be - but only where it delivers a genuine technical improvement.
• Don’t disclose publicly before filing. Use NDAs, document your development, and consider a provisional application while you refine and validate.
• Patents are just one tool: consider registered designs for looks, trade marks for brand, copyright for code and creative assets, and trade secrets where secrecy is sustainable.
• Lock down ownership with the right contracts and plan commercialisation early - whether you build, license or partner, align your IP strategy and agreements.
• Specialists matter: work with a patent attorney for filings, and coordinate broader IP and commercial documents with an experienced Intellectual Property Lawyer.

If you’d like a consultation on planning your patent and broader IP strategy, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.