How Long Does a Patent Last in Australia?

Want to know how long Australian patents last? Standard patents protect your invention for up to 20 years from the filing date. The exact duration depends on your patent type.

Australian patent law has different protection periods that you should know about. Pharmaceutical patents can get an extra five years of protection, which means they last up to 25 years. The system used to have innovation patents that lasted 8 years. These are now phased out since 25 August 2021. Most inventions that need patent protection get the standard 20-year term. This is common in Australia and other countries too.

This piece covers Australian patent types, duration factors, post-expiry implications, and global comparisons. The information here will help inventors, business owners and anyone interested in intellectual property rights protect their state-of-the-art ideas better.

Understanding Patent Types in Australia

Australia’s patent system protects your inventions in different ways based on your specific needs. Each type of patent serves a unique purpose and lasts for different periods. Given the complexity of choosing the right patent type and managing the application process, many businesses work with experienced intellectual property lawyers Brisbane who can guide them through the entire patent registration process.

Standard patents – 20 years

Standard patents give complete protection to new inventions that include an inventive step. You get exclusive rights to take legal action against anyone who uses your invention in Australia without permission. The protection lasts up to 20 years from when you file, as long as you keep paying your renewal fees. You’ll need to make your first renewal payment after four years from the filing date.

These patents work best for inventions that need long-term protection and control. You can exclusively profit from your invention during this time. The application process needs you to provide a full description and formal claims.

Pharmaceutical patents – up to 25 years

Australian law gives special treatment to pharmaceutical patents. The Patents Act 1990 lets you extend protection for up to 5 more years beyond the standard 20-year term. This extension exists because pharmaceutical products need lengthy pre-market approvals that can eat up 10-15 years of useful patent life.

Your patent must meet several requirements to qualify for this extension. It needs to show and claim a pharmaceutical substance per se (or one made by recombinant DNA technology). The substance must appear in the Australian Register of Therapeutic Goods. The first regulatory approval should happen more than 5 years after the patent date. Your rights as a patent holder become more limited during the extended period than during the standard term.

Innovation patents – 8 years (phased out)

Innovation patents came into existence in 2001 as a second-tier protection system. These patents were designed specifically for small and medium-sized enterprises. They lasted eight years from filing and needed an “innovative step” instead of an “inventive step”.

The system is now being phased out. The last filing date was 25 August 2021. Current innovation patents will stay valid until they expire. You can still get certification for existing innovation patents, convert standard applications filed before the cutoff date, or file divisional innovation patents from parent applications submitted before the cutoff.

Provisional patents – 12 months

Provisional applications work as a temporary placeholder rather than actual protection. They set your priority date and show that you plan to get full patent protection. These applications last 12 months and expire if you don’t apply for a standard patent within this timeframe.

The main advantages are clear. You secure an early priority date and get extra time to develop your invention. It also signals competitors that you plan to patent your invention. Unlike other patents, no one examines or publishes provisional applications.

What Affects How Long a Patent Lasts

Australian patents typically last 20 years, but several factors can affect how long your patent protection actually lasts.

Filing date and priority rights

Your patent duration calculation starts from the filing date. IP Australia assigns this date when they receive your complete application with all required information. Priority dates play a crucial role in establishing your rights over similar inventions filed later. You gain an advantage in patent disputes by securing an earlier priority date through a provisional application. Your priority date changes to the amendment filing date if your original application didn’t fully describe the invention.

Examination and approval delays

Your application needs examination before you can enforce it. The examination process usually takes about 12 months from when you request it. These delays can cut into your patent’s commercial lifespan. IP Australia’s workload determines standard examination timelines, but you have options to speed things up. “Fast-tracking” can get you an examination report within 8 weeks in special cases, or 4-6 weeks through the Global Patent Prosecution Highway route.

Annual renewal fees and maintenance

You need to pay increasing annual fees to keep your patent active. Standard patents require their first renewal fee on the fourth anniversary of filing. The fees increase significantly after that starting at $300 in year 5 and reaching $2,800 by year 20. Pharmaceutical patents cost even more in extended years, with fees up to $8,000 by year 25. IP Australia reports that standard biotechnology patents typically last about 12 years, even though they could run for 20 years.

Patent revocation or lapse

Patents can end early in several ways. Missing renewal fee payments puts your patent in a “state of lapse,” followed by a six-month grace period with $150 monthly late fees. Your patent completely lapses after this period. Courts can also revoke patents for reasons like fraud, false representation, or unpatentability. The Commissioner has the power to revoke acceptance before grant if the application shouldn’t have been accepted.

Patent Expiry and What Happens Next

Patents undergo major changes to their legal status and holder’s rights when they reach the end of their term. You need to understand these changes to manage intellectual property effectively.

When a patent enters the public domain

Your patent and its protected invention become part of the public domain after expiry. Anyone can then exploit your product or process commercially by manufacturing and selling the invention. The patent still “subsists” legally in spite of that. This means you can take action against any infringements that happened while your patent was active.

Can a patent be renewed after expiry?

The simple answer is no. You cannot renew standard patents after their 20-year term in Australia (or 25 years for pharmaceutical patents). Missing a renewal deadline gives you a six-month grace period to keep your rights. You’ll need to pay an extra $150 for each month or part-month the fee stays unpaid during this time. Your patent will completely lapse and lose IP protection if you don’t renew within this grace period.

Risks of not managing expiry dates

Companies must monitor their patent portfolios and expiry dates carefully. They usually see big drops in revenue when patents expire because generic competitors enter the market. The original patent holder’s market share often shrinks. This creates major financial effects that require quick business strategy changes.

International Patent Duration and Comparisons

Patents work as territorial rights, which makes protecting them internationally a complex process. You need to understand global patent systems to protect your inventions beyond Australia.

No such thing as a global patent

Many people believe in “international patents,” but they don’t exist. You must seek patent protection separately in each country or region where you want your invention protected. This means you’ll need multiple patents through individual applications when expanding internationally.

Patent Cooperation Treaty (PCT) timelines

The PCT system provides an efficient way to file in multiple countries with a single international application. Your original PCT application protects your rights in all 150+ member countries up to 30 months from your priority date. Australian rules give you 31 months to enter the national phase. Your application then becomes an Australian patent application.

How Australia patents compare globally

Australia’s 20-year patent term matches international standards, with 25 years for pharmaceuticals. The country has built a reputation worldwide as a mature, reliable patent system with high quality. Australia’s previous innovation patent system stands out by offering 8-year protection for incremental inventions. Chinese applicants found this system particularly useful to get rapid protection.

Conclusion

Patent lifespan knowledge is vital for effective intellectual property management in Australia. Standard patents protect innovations for 20 years, while pharmaceutical patents can last 25 years due to regulatory approval processes. Innovation patents, now being phased out, gave 8 years of protection to incremental innovations.