Intellectual Property Principles
An invention must be non-obvious and must have an “inventive step”. To qualify for patent protection, an invention, product or a process must not be a result of obvious industrial knowledge and experience.
Remember that the purpose of patent law is to encourage and protect new inventions. Anything which is obvious to a person with ordinary knowledge of a particular field will not really contribute anything new to the current knowledge base. It is therefore not patentable.
To determine whether an invention has the necessary “inventive step” above prior knowledge, the patent examiner will ask whether the invention would have been obvious to a person skilled in the relevant field. For instance, if the invention is a medical invention, then a person “skilled in the relevant field” might be a doctor or medical technician. If the advance in knowledge covered by the invention would have been obvious to a person skilled in the relevant field, then the invention will not have enough of an inventive step and will not be patentable.
Kathy is a heart surgeon. Based on her experience, she makes new microsurgical scissors which are smaller in size than usual and can thus help increase precision. She files a patent application for her new microsurgical scissors. Her patent application is not likely to be successful because her product, for other heart surgeons, is a fairly obvious improvement on an existing tool.
You may have heard of the term ‘innovative step’. This was the standard required for innovation patents, which last for 8 years. Innovation patents were generally used for inventions with a short commercial life (i.e. which did not necessarily need a full 20 years of protection); or for incremental advances on existing technology, rather than groundbreaking inventions.
Innovation patents were not regularly used by inventors, and so are being phased out. The last innovation patent applications were accepted on 25 August 2021, and any innovation patents filed on or before that date are still valid. This means that there may be innovation patents in operation until late 2029. However, IP Australia is no longer accepting applications for innovation patents.
Find out about how patents are assessed by a person ‘skilled in the art’ in this video.
Please note: this video was not developed by, and is not the property of the ATN and is hosted on an external website.