How to Protect an Invention in Australia: A Patent Attorney’s Perspective

Blog
November 13, 2025

Melbourne-based guidance for innovators, engineers, founders and R&D leaders planning to secure IP in Australia (and beyond). This article is general information only and not legal advice.

Who this guide is for (and why it matters)

You’ve designed a new product, formulated a novel process, coded a technical solution, or developed an engineering improvement that gives your business a measurable edge. In Australia, the choice you make in the first weeks of development can determine whether you end up with a defensible patent, a limited right, or no right at all.

This long-form guide is written for:

Founders and SMEs looking to commercialise an invention in Australia.
R&D and product teams inside established organisations.
Designers, engineers and scientists preparing to disclose or launch.
Investors and boards seeking to de-risk innovation programs.

If you need tailored advice about your specific invention, speak with a registered patent attorney. You can learn more about our patent services here: patent.

The goal of “protection”: what a patent actually gives you

A patent is an exclusive right granted for an invention that is new, inventive, and useful. In practical terms, a standard Australian patent gives the owner the right to stop others from making, using, selling, importing or otherwise exploiting the patented invention in Australia for up to 20 years (subject to renewals and, for certain pharmaceuticals, possible extensions).

Key points:

Territorial: Australian patents protect you in Australia. Overseas protection requires overseas filings or international routes (see the PCT section below and ip-protection-internationally).
Disclosure exchange: To get a patent, you disclose how to make and use the invention. In return, you receive enforceable exclusive rights for a limited time.
Public document: Your specification publishes-typically 18 months from the earliest filing. Drafting quality matters.

Patents are one component of an IP strategy that can also include trade marks (brand protection-see trade-marks), designs (visual features), copyright (original expression) and confidential information (trade secrets).

The three threshold questions (before you do anything public)

Before disclosing your concept to anyone outside a controlled, confidential setting, consider:

Is it new?
Novelty in Australia is assessed against the world’s prior art (published or publicly used anywhere). If your invention has been publicly disclosed before your earliest filing date, patent options may be limited.
Is it inventive (or non-obvious)?
Would the differences over prior art be obvious to a skilled person in the field? Incremental changes can still be patentable if they produce a non-obvious technical advantage.
Is it useful (works as described)?
Your specification must enable a skilled reader to perform the invention without undue experimentation.

Getting these right early helps you choose the right filing path and manage announcements, sales meetings, trade shows, grant applications and investor decks.

Confidentiality, NDAs and lab notebooks

Keep it confidential until you file. Public disclosure before filing can destroy novelty.
Use non-disclosure agreements (NDAs) for third-party discussions.
Maintain dated records: lab books, version control, test logs, drawings and data-crucial for drafting and to evidence development.

What is patentable in Australia? (Subject-matter snapshot)

Patentable subject matter is broad-products, processes, apparatus, systems, methods-but not everything qualifies. Issues regularly seen:

Software / computer-implemented inventions: Potentially patentable if there is a technical contribution beyond a mere abstract idea or business scheme. The drafting must emphasise the technical problem and solution, not just commercial outcomes.
Business methods: Generally difficult-must deliver a technical effect or improvement.
Medical methods: Methods of treatment and diagnosis may be patentable in Australia (subject to specific rules).
Discoveries, abstract ideas, mathematical algorithms: Not patentable as such, but can be protectable when applied in a technical implementation.

A careful subject-matter assessment with a patent attorney helps to position your specification to the current Australian practice.

The Australian patent landscape (what replaced “innovation patents”?)

Australia currently provides standard patents as the primary right (maximum term 20 years, maintenance fees due). The innovation patent system was phased out; new innovation patent applications are no longer available. If you’ve seen older references to innovation patents, treat them as historical context rather than current strategy.

Strategic pathways: from idea to protection

There is no single path that suits every invention or budget. Here are the most common routes.

Path A: Provisional first, then standard (typical for new R&D)

Provisional application (Australia)
- Establishes a priority date (your “place in line” for the disclosed subject matter).
- Not examined; never becomes a granted patent on its own.
- Offers 12 months to refine, test, raise capital, and decide on jurisdictions.
- Key risk: A weak or under-disclosed provisional can compromise your later rights. Draft with care.
Within 12 months: choose one or both
- PCT international application (keeps options for many countries open-see below).
- Direct Australian standard patent application (and optionally parallel foreign national filings).

Path B: Immediate Australian standard patent

Suitable when the invention is ready, timelines are tight, or budget favours going directly national.
Examination can be requested to progress toward acceptance and grant.

Path C: PCT (international) to keep options open

A Patent Cooperation Treaty (PCT) application does not itself grant a patent; it streamlines filing for many countries and gives you up to 30/31 months from the priority date to enter national phases (e.g., Australia, US, Europe, China, etc.).
You receive an international search and an opinion on patentability-useful inputs for strategy and investor conversations.

See our international overview here: ip-protection-internationally.

Prior art searching: how much is enough?

Search objectives:

Test novelty and inventive step risks.
Inform claim scope and drafting.
Identify design-around positions and competitor landscapes.

Types of searches:

Knock-out (quick sanity check before filing).
Comprehensive (pre-drafting; better for high-value inventions).
Patentability vs Freedom to Operate (FTO): Patentability asks “Can you get a patent?” FTO asks “If youmake/sell this, are you likely to infringe someone else’s patent?” They are different exercises and may be staged separately.

Well-designed searches save time and help set realistic expectations.

Drafting the patent specification (why quality matters)

The specification is the legal and technical foundation of your rights. A strong specification typically includes:

Clear problem–solution framing: What technical problem is being solved?
Broad concept + fallback positions: Layered claim strategy to survive examination while maintaining commercially meaningful scope.
Enablement and support: Enough detail, embodiments and alternatives so a skilled person can implement without undue experimentation.
Figures and examples: Where valuable, use drawings, flowcharts, system diagrams and result summaries.
Terminology discipline: Consistent definitions, units and nomenclature.

Your first filed specification (including a provisional) should be drafted with the assumption that it will be scrutinised. Upgrading later is harder than getting it right early.

Claim strategy: breadth vs defensibility

Independent claims define the broadest protection sought.
Dependent claims provide fallbacks (narrower features) that can rescue a case during examination or opposition.
Avoid drafting that is too narrow to be commercially useful or so broad that it becomes vulnerable to prior art.

A pragmatic approach balances ambition with survivability.

Timing, milestones and a typical timeline

Scenario: Provisional → PCT → National

Day 0: File Australian provisional. Confidentiality risk drops; you can start limited external conversations (still use NDAs).
0–12 months: R&D refinements, pilot data, customer discovery, investor discussions; prepare for next step.
By 12 months: File PCT (or direct national filings).
~16 months: International search report (PCT).
~18 months: Publication of your application.
Up to 30/31 months: National phase entries (choose countries/regions).
Australia: Request examination for a standard patent, respond to examination reports, aim for acceptance and grant.

Timings vary with strategy, office backlogs and responsiveness during examination.

Costs and budgeting

While this article does not provide prices, practical budgeting should consider:

Preparation and drafting (often the major early cost).
Filing fees (Australia, PCT, and later national phases).
Search and examination fees (jurisdiction-dependent).
Attorney time for responses during examination.
Maintenance/renewal fees (over the life of the patent).

Discuss a staged budget aligned to your commercial roadmap and funding events.

Commercial readiness: align your patent with your product

A patent is most valuable when it protects what you intend to sell-including core architecture, differentiators, and revenue-critical features.

Consider:

Where you will manufacture, sell and distribute.
Who the likely competitors are and how they could copy or design around.
Which features customers will pay for-and therefore which features must be covered in the claims.
Future versions: If your roadmap adds capability, ensure the drafting anticipates realistic variants.

International strategy: when to think beyond Australia

Think internationally if you expect:

Overseas manufacturing or sales.
Competitors headquartered or strong in particular markets.
Future investment or licensing that values international portfolios.

Two common patterns:

Australia + select key markets (e.g., AU, US, EU, CN, JP).
PCT to keep options open, then decide by 30/31 months.

See ip-protection-internationally for a broader look at routes and timing.

Software and digital inventions: avoiding common traps

For computer-implemented inventions:

Emphasise the technical effect (e.g., latency reduction, improved resource utilisation, enhanced signal fidelity), not just business results.
Describe system architecture, data flows, algorithmic steps at an implementation level.
Provide worked examples and variants.
Claims should be directed to technical implementations (system, method, computer-readable medium).

This positioning helps distinguish technical solutions from excluded subject matter.

Ownership and assignments: get chain of title right

Ensure inventor–employer agreements and contractor assignments clearly vest rights in the correct entity before filing.
If collaborators or suppliers contributed, document contributions and obtain assignments as needed.
Keep corporate structuring in mind if investment or IP holding entities are part of your plan.

Freedom to operate (FTO): separate from patentability

Securing a patent does not guarantee you can practice the invention without risk. A freedom to operate analysis checks whether your planned product is likely to infringe any valid third-party patents in the markets of interest.

FTO can be staged (pre-launch scan, deeper before scale-up).
Design-around options can be part of product development.

Managing disclosure: marketing, grants, investor decks and trials

File before publishing whitepapers, running public pilots, pitching without NDAs, or exhibiting at trade shows.
If a public disclosure has already occurred, seek urgent advice-there may still be limited options depending on circumstances and timing.

Enforcement, monitoring and maintenance (after grant)

Renewals: diarise maintenance fee deadlines early.
Monitoring: keep watch on competitor filings and products.
Enforcement: Common steps include letter of demand, negotiations, or proceedings where appropriate. Strategy is fact-specific; obtain tailored advice.
Licensing: A granted patent can support licensing or cross-licensing arrangements.

Integrating patents with trade marks, designs and trade secrets

A robust strategy often combines:

Patents: protect technical features.
Trade marks: protect brands, names and logos-see trade-marks.
Design registrations: protect the visual appearance of products.
Confidential information: keep certain know-how as a trade secret where suitable.

The right mix depends on your product, lifecycle, and competitive landscape.

Working with a patent attorney: what to expect

A typical engagement roadmap:

Initial consultation: discuss the invention, commercial aims, deadlines and budget.
Search & strategy: agree scope and filing path (provisional / standard / PCT).
Drafting: collaborative iterations to ensure technical accuracy and commercial coverage.
Filing: secure a filing date; plan for 12-month and 30/31-month milestones.
Examination & prosecution: respond to examiner reports; adjust claim strategy if required.
Post-grant: maintenance, monitoring, and portfolio management as the business scales.

Clear communication between the inventors, product team and attorney generally results in stronger, more defensible rights.

Practical checklists

Pre-filing checklist

Kept invention confidential (NDAs in place).
Captured dated records, drawings, test data.
Identified core commercial features to protect.
Considered an initial search to understand prior art.
Confirmed ownership/assignments across inventors and contractors.
Aligned budget and timeline with milestones (12 and 30/31 months).

Drafting & filing checklist

Enablement: specification teaches how to perform the invention.
Fallbacks: dependent claims provide layered protection.
Figures: helpful drawings/flowcharts included.
Terminology: consistent definitions and units.
Jurisdictions: Australia only vs PCT vs direct foreign filings considered.

Commercial integration checklist

Patent scope maps to product roadmap.
FTO considered before scale-up.
Renewals diarised; monitoring plan in place.
Complementary trade marks and designs assessed.
International plan reviewed: ip-protection-internationally.

FAQs

Q: Do I need a patent to sell my product?
No-patents are not mandatory to sell. However, a patent can provide a competitive legal barrier and may be valuable for investment, licensing and market position.

Q: Can I talk to investors before filing?
It’s safest to file first. If discussions must occur earlier, use NDAs and limit technical disclosure. Public disclosures without filing can jeopardise novelty.

Q: How long does it take to get an Australian patent?
Timelines vary. After filing a standard patent, you can request examination; the process to acceptance and grant depends on examiner workload and the complexity of responses.

Q: What if my invention changes after I file a provisional?
You can file a new provisional capturing improvements, or ensure the later complete application sufficiently supports the updated embodiment. Strategy depends on specifics-get advice.

Q: Is software patentable in Australia?
It can be, if the invention provides a technical solution to a technical problem. Drafting must clearly present that technical effect.

Next steps

Learn about our Patent services: patent
Planning to expand overseas? See International IP protection: ip-protection-internationally
Protecting your brand as you build: Trade marks in Australia: trade-marks
Ready to discuss your invention? Contact our Melbourne office: contact-us