Standard Patents may last for up to 20 years, subject to payment of
renewal fees. A standard patent requires an invention to be novel and
"inventive".
An application for a standard application must be accompanied by a "complete" specification. A complete specification differs from a provisional specification in that it must include one or more claims. The claims set out features of the invention for which monopoly is claimed.
Each claim is a single sentence that sets out the essential features. A claim is only infringed if all of the features specified by that claim are found in the allegedly infringing product, system or method etc.
It is a requirement of Australian law that a complete specification must describe the invention fully, including the best method known to the applicant of performing the invention, as at the filing date. If the best method known at the time is not disclosed, then any resulting patent will be invalid.
A complete specification must also be suitable for publication and, accordingly, any drawings need to meet specific requirements. This usually requires that the drawings be drawn by a professional draughtsman.
Effective 22 October 2007 the need to file search results on pending applications was, in effect, abolished. This applies even if the search results were overdue.
The legislative changes do not , however, excuse a past failure to file search results if the final date for lodging the search results expired before 22 October 2007.
A standard patent
application must be examined before it can be granted. Examination only occurs
after the applicant requests examination. If no request for examination is
filed within 5 years of the filing date then the application will lapse. The
Patent Office may also direct the applicant to request examination, in which
case the applicant must request examination within 6 months of the date of the
direction or the application will lapse. A direction usually issues about 3
years after the priority date.
After examination
has been requested the Patent Office will conduct a search of the prior art and
consider the invention against the prior art found. The examiner will consider
the application for internal consistency and whether the invention as claimed
is both novel and inventive over the prior art. If objections are raised an
examiner's report will issue. The applicant has 21 months from issue of the
first report to overcome the objections and have the application accepted.
Objections raised
by an examiner may be overcome by argument or amendment of the specification or
both. It is possible to file as many responses as desired within the 21 month
period. Responses filed more than 12 months after the first report require the
payment of "response fees". These fees are payable when filing the response and
are for each month beyond the 12 month deadline.
If the objections
cannot be overcome within this period the application will lapse. However, a
"divisional" application may be filed before lapsing to maintain any patent
rights.
A divisional
application is usually made where two or more inventions are disclosed in a
single application. A patent can only be granted for a single invention and so
any extra inventions are split out and made the subject of separate
applications. A divisional application is an application that claims matter
disclosed in an earlier application and has the benefit of the earlier
application's priority date(s). The effective filing date insofar as its
maximum duration and when renewal fees are due is calculated from the filing
date of the earlier application, not its actual filing date. A divisional
application can only be filed whilst the earlier application is alive and has
not been granted.
If no objections
are raised during examination or any objections are overcome the application is
accepted and published as accepted in an official journal. Third parties have
three months from the date of publication of acceptance to oppose the grant of
the patent. Opposition is relatively rare and if no opposition is filed, the
application proceeds to grant, subject to payment of an acceptance fee. The
acceptance fee is payable before the end of the 3 month opposition period. The
application lapses if the acceptance fee is not paid.
For standard
applications and patents renewal fees are first due five years from the filing
date and then every year afterwards.
Patents