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Applying for a patent
Patentability
What are the criteria for patentability in your jurisdiction?
There are two types of patent in Australia: standard patents (with a term of 20 years) and innovation patents (with a term of eight years).
To meet the requirements for a standard patent, an invention must be a manner of manufacture (ie, belong to the useful arts, provide a material advantage and be of value in the field of economic endeavour), and be novel, inventive and useful. Standard patents are subject to substantive examination before grant.
To meet the requirements for an innovation patent, an invention must be novel and useful and involve an innovative step. The threshold required to demonstrate innovative step is somewhat less than that required for an inventive step. Innovation patents are not subject to substantive examination before grant, but must be examined (‘certified’) before enforcement.
What are the limits on patentability?
Human beings and the biological processes for their generation are not considered patentable inventions. Further, artistic creations, mathematical models, plans, schemes and other purely mental processes are excluded from patentability as they are not considered a manner of manufacture (ie, belonging to the useful arts, providing a material advantage and being of value in the field of economic endeavour).
To what extent can inventions covering software be patented?
The patentability of a software invention depends on its ability to meet the requirement of being a manner of manufacture (ie, belonging to the useful arts, providing a material advantage and being of value in the field of economic endeavour). Generally, this requires the software to present an artificial state of affairs in order to provide a physical effect.
To what extent can inventions covering business methods be patented?
Business methods may be patented, provided that the method directly involves a physical form or device to provide a useful product.
To what extent can inventions relating to stem cells be patented?
No explicit provisions prohibit the patentability of stem cells and methods of using stem cells, provided that the invention does not result in a human being or a biological process for the generation of a human being. Totipotent stem cells are generally not patentable. Any invention relating to stem cells should be considered on a case-by-case basis.
Are there restrictions on any other kinds of invention?
No other restrictions on inventions exist.
