Patents

A patent protects an invention which is new, inventive and useful. It gives the owner the exclusive right to use the invention for up to 20 years, and the power to stop others who copy it. A strong single patent can form the basis for an entire business.

Patents protect ideas as opposed to the expression of ideas which is covered by copyright. As patents protect the idea behind a product and not necessarily the product itself they are very useful. Anyone who uses the same idea without the permission of the patent owner infringes the patent. If the patent protects an idea in broad terms, then it can be used to stop others making products which do not resemble the patent owner’s product at all, giving them an exclusive right to exploit an entire market.

Patents are territorial in nature which means that a granted patent only protects the invention in the country in which the patent granted. For example if a patent for a new type of clamp was only applied for and granted in New Zealand the owners of the patent would not be not able to use the New Zealand patent to prevent a person from manufacturing and selling that clamp in Australia.

There are a number of different things which can be protected by patents such as:

  • A new product or improvement to an existing product such as a mechanical device, food products and household products
  • A new process of manufacturing or an improvement to an existing process
  • A new type of chemical compound or composition
  • Biotechnological matter such as genetic sequences and microorganisms
  • A second pharmaceutical use for a known chemical compound or composition
  • Electrical circuits and devices
  • Computer technology such as the use of computer software in some instances.

In New Zealand there are two different types of patent applications, a provisional patent application and a complete patent application.

A provisional patent application typically broadly describes an invention and is given a filing date and number by the Patent Office.  However, the invention will not be searched or examined by Patent Office and a provisional patent application does not give you patent protection on its own. A provisional patent application in New Zealand holds an applicant’s rights for 12 months (extendible by 3 months) to file a complete patent application. Provisional patent applications are also available in Australia and hold an applicant’s rights for 12 months to file a standard patent application.

There are a number of benefits of filing a provisional patent application such as giving you additional time to work on developing your invention, giving you additional time to decide whether it is worth the further time, money and effort associated with filing a complete application for a patent. It also allows you to market and publish your invention, it gives you a priority date to help prevent other people trying to patent your idea and it is cheaper than filing a complete patent application.

The disadvantages of provisional patent applications are that to eventually gain a granted patent you need to file a complete patent application (or standard patent application as it is called in Australia) which makes the process more expensive.

A complete patent application can either be filed on its own in the first instance or can be filed based on an earlier provisional patent application. Once granted a complete patent application provides patent protection for 20 years from the filing date of the complete patent application. Before a patent is granted, the complete patent application has to be examined by the Patent Office. In both New Zealand and Australia a request for examination has to be filed before the application is examined and this request is mandatory. The request for examination must be made within the earlier date of 5 years from the date of filing the complete specification or within 2 months from a direction to request examination from the Patent Office.

Once the patent has been granted it lasts for 20 years from the filing date (or up to 25 years from the filing date in Australia for pharmaceutical substances) if all renewal fees are paid. Renewal fees in New Zealand and Australia are due on the 4th anniversary of the filing of the complete patent application and subsequent renewal fees are due by each anniversary of this date.

In Australia is there also a type patent called an innovation patent. Innovation patents can be gained relatively quickly and are an inexpensive option which provides 8 years of protection. Innovation patents are useful for inventions that have a short commercial life or that offer comparatively small advances over existing technology but which do not have the inventive step required to get a standard patent. Innovation patents are granted without any technical examination step but before an owner can use the innovation patent against infringers the patent has to be taken through an examination procedure.  The examination step can be requested before grant, or even after grant, whatever is preferred.

Once the innovation patent has been granted it lasts for 8 years from the filing date if all renewal fees are paid. Renewal fees are due on the 2nd anniversary of the filing of the innovation patent application and subsequent renewal fees are due by each anniversary of this date.

If you would like any more information regarding patents or would like to file a patent application then please let us know.