How to apply for a patent in Australia, a step-by-step guide

You have built something genuinely new, a product, process or piece of software that competitors could copy, and you are at the point where a patent filing has to be decided. The decision usually gets forced by timing: a product launch, a pitch to investors, a crowdfunding campaign or a partnership discussion, any of which will put your invention in front of people outside your business. If you have not filed before that happens, you may have lost the ability to patent at all.

If you follow the process through to the end, you will have a granted standard patent: an exclusive right, enforceable in Australia, to exploit your invention for up to 20 years. It is worth being clear at the outset about what does not happen. Filing a provisional application is not the same as having a patent, and gives you no enforceable rights on its own. The official filing fees are the cheap part; professional drafting and 20 years of maintenance are where the real cost sits. And a granted patent does not police itself, if a competitor infringes, you have to take action.

The process below is governed by the Patents Act 1990 (Cth) and the regulations made under it, and is administered by IP Australia. It is a general guide only, not legal advice. Patent applications are technical documents, and almost every serious filing is prepared and prosecuted by a registered patent attorney.

What to have sorted before you start

You can file the paperwork without any of this in place, but each item below is something that trips people up later if it is not dealt with first.

A qualifying invention: The invention must be a manner of manufacture that is novel, involves an inventive step and is useful, as set out in s 18 of the Patents Act 1990 (Cth). Abstract ideas, business methods and purely commercial cleverness generally do not qualify.
No public disclosure yet: If the invention has already been shown to the public, novelty can be destroyed. There is a limited grace period (below), but it is not something to plan around.
Clear ownership: A patent can only be granted to the inventor or someone entitled to have the patent assigned to them (s 15 of the Patents Act 1990 (Cth)). If contractors, co-founders or developers have contributed, sort out who owns what before you file.
A filing route decision: Provisional application first, then a complete application within 12 months, or a standard application filed directly, or an international (PCT) application if you need protection overseas.
A budget: The current official fees are modest, $100 to file a provisional application and $400 to file a standard application online (Schedule 7 of the Patents Regulations 1991). Attorney drafting fees, examination fees and annual renewals are the larger numbers.
A commercial answer to "why": What exactly are you protecting, in which markets, and for how long? The patent should match a commercial plan, not the other way around.

The two prerequisites that most often sink a filing are disclosure before the filing date and unresolved ownership. Both are cheaper to fix before you start than after.

The application process step by step

The stages below follow the order IP Australia imposes. Each one produces something specific, and each one has a deadline attached to it.

Step 1: Keep the invention confidential before you file

Novelty is judged against everything that was publicly available before your filing date. A pitch deck sent to the wrong person, a website launch, a crowdfunding page or a public product demo can all make the invention part of the prior art and destroy the chance of a valid patent.

Australia does have a grace period in s 24 of the Patents Act 1990 (Cth). In limited circumstances, information made publicly available in the 12 months before filing can be disregarded when novelty and inventive step are assessed, for example disclosures made by or with your consent in certain settings, and disclosures by someone who derived the information from you. The window is 12 months from the day the information became public, and the circumstances are prescribed in regulations 2.2A to 2.2D of the Patents Regulations 1991.

The grace period exists, but it is not a strategy. It is narrow, it does not cover every kind of disclosure, and relying on it makes your position weaker and harder to prove. The safe approach is to treat everything about the invention as confidential until a provisional or complete application is on file. Use a non-disclosure agreement before sharing details with contractors, manufacturers, advisers or investors, and keep records of who saw what and when.

Step 2: Search prior art and test whether the invention is new

Before spending money on drafting, it is worth checking whether the invention is actually new. Prior art means everything already publicly available: earlier patents, published applications, journal articles, products on sale and other public disclosures, anywhere in the world.

A practical search involves:

IP Australia's free Australian Patent Search (AusPat) and international patent databases such as Google Patents
searching by keyword, class and inventor name, and following the citations in any close documents
checking the commercial field too, a product already on sale can be prior art even if no patent was ever filed

The search gives you a shortlist of documents that are closest to your invention. That shortlist tells you whether it is worth filing, and it helps your patent attorney draft claims that steer around what already exists. The examiner will run their own search during examination, so a thorough search now avoids paying to draft an application that fails later.

Step 3: Decide what the patent will claim

A patent does not protect your invention in the abstract. It protects the invention as defined in the claims, which are the numbered statements at the end of the complete specification that mark out the boundary of your monopoly. Everything else in the specification is there to support the claims.

Under s 40 of the Patents Act 1990 (Cth), a complete specification must disclose the invention clearly and completely enough for a person skilled in the field to perform it, disclose the best method known to the applicant, and end with claims that are clear, succinct and supported by the description. A provisional specification must meet the disclosure standard, but does not need claims.

Before drafting, work out:

what the invention is at its broadest level, and which features are essential rather than nice to have
how a competitor might design around each claim
how the product is likely to change over the next 12 to 24 months, because anything added to the specification later does not get the benefit of the original filing date

This is the stage where patent strategy and commercial strategy meet, and it is where a registered patent attorney earns their fee.

Step 4: File the provisional application (or go straight to standard)

The usual startup path is to file a provisional application first. Under s 29 of the Patents Act 1990 (Cth), a provisional application is a patent request accompanied by a provisional specification, and it does not require claims. The current filing fee is $100 online (item 201 of Schedule 7 of the Patents Regulations 1991).

One option you may come across in older material no longer exists. The innovation patent, a cheaper second-tier right aimed at incremental inventions, was wound up in 2021 and new applications can no longer be filed. For a new invention, the standard patent, usually preceded by a provisional application, is the route that is actually available.

What a provisional application buys you is time. It establishes a filing date, which becomes the priority date for everything disclosed in the specification. You then have 12 months from that filing date to file a complete application (s 38 of the Patents Act 1990 (Cth), regulation 3.10 of the Patents Regulations 1991). If you do not, the provisional application lapses under s 142(1) and you lose the filing date entirely.

During those 12 months you can keep developing, test the market and decide whether the commercial case holds up. But the provisional specification must be drafted properly. It has to disclose the invention clearly and completely enough for a skilled person to perform it (s 40(1)). If it is drafted too thinly, or misses a feature that later turns out to be the point of the invention, that feature will not get the benefit of the early filing date, and someone else's disclosure in between could destroy novelty.

The alternative is to file a standard (complete) application directly: a patent request with a complete specification including claims, currently $400 online (item 203 of Schedule 7). This is usually the right move when the invention is settled and the market is ready. If you need protection in several countries, an international application under the Patent Cooperation Treaty (PCT) lets you file once and enter national phases later, usually within 31 months of the priority date, with Australia as one of the designated countries.

Whatever route you take, the filing gives you an application number, a filing date and a receipt, and from that day the clock is running on the deadlines below.

Step 5: Request examination and respond to the examiner

A standard patent application is not examined automatically. Examination must be requested within 5 years of the filing date of the complete application (s 44 of the Patents Act 1990 (Cth), regulation 3.15 of the Patents Regulations 1991). In the meantime, the complete specification is published and open to public inspection within 18 months of filing, which is how competitors find out what you are doing.

When examination is requested, the Commissioner examines the specification and reports on whether it complies with s 40 and whether the invention satisfies the patentability criteria in s 18 of the Patents Act 1990 (Cth). In practice this means an examiner issues an examination report raising objections, and you respond with amendments, submissions or both. This back and forth can run for months, and it is technical.

Two deadlines matter here. If you never request examination, the application lapses under s 142(2). If the application is not accepted within the prescribed period, it also lapses. Responding to examination reports on time, and keeping the claims as broad as the prior art allows while still being defensible, is the core of patent prosecution.

Step 6: Acceptance, grant, renewals and enforcement

If the Commissioner is satisfied on the balance of probabilities that the specification complies and the invention qualifies, the application is accepted under s 49 of the Patents Act 1990 (Cth) and notice is published in the Official Journal. A standard patent is then granted under s 61 unless there is an opposition.

The patent runs for 20 years from the date of the patent, which is the filing date of the complete specification (ss 65 and 67 of the Patents Act 1990 (Cth)). Keeping it alive is not automatic:

annual renewal fees are payable from the fifth year of the patent, and they increase as the patent ages
if a renewal fee is not paid, the patent ceases under s 143, though there is a 6-month late payment window with an additional fee (regulation 13.6 of the Patents Regulations 1991)
renewal fees are set out in the IP Australia fee schedule and are payable through IP Australia's online services

Enforcement is a separate question from grant. The patent gives you the exclusive right to exploit the invention (s 13), and infringement proceedings can be started by the patentee or an exclusive licensee within 3 years of grant or 6 years of the infringing act, whichever is later (s 120). The Federal Court has jurisdiction over patent matters (s 154). Enforcement is expensive and slow, which is why the commercial case for the patent matters as much as the technical one.

Where applications typically stall

Five problems account for most applications that never reach grant:

Public disclosure before filing: A pitch, demo or website launch outside the narrow grace period destroys novelty. Keep everything confidential until a provisional or complete application is filed.
Missing the 12-month deadline: A provisional application lapses if the complete application is not filed within 12 months, and you lose the filing date. Diarise the deadline the day you file.
A provisional specification drafted too thinly: Features added later do not get the early priority date. The provisional needs the same care as the complete specification.
Ownership gaps: If a contractor or co-founder contributed and there is no assignment, the filing can be blocked or disputed later. Get assignments signed before filing.
Missed examination deadlines: Applications lapse if examination is not requested within 5 years or acceptance is not achieved in time. These are long deadlines, which is exactly why people miss them.

When you need a patent attorney and a lawyer

The specification and claims are the heart of the application, and under s 202 of the Patents Act 1990 (Cth) they must be prepared by a registered patent attorney, or by a legal practitioner acting on a registered patent attorney's instructions. A registered patent attorney is entitled to prepare all documents and conduct all proceedings before IP Australia, and their IP advice carries the same privilege as legal advice (s 200). They handle the prior art searching, the drafting, the examination responses and the deadline management, and they advise on PCT strategy when you need protection overseas.

A lawyer's role sits around the edges of the filing. Ownership and entitlement come first: if founders, contractors or employees contributed to the invention, a lawyer drafts the assignments and agreements that make sure the patent ends up owned by the right entity, which is a condition of a clean filing under s 15. Lawyers also handle the non-disclosure agreements, licensing arrangements and any later enforcement, because a registered patent attorney cannot conduct court proceedings (s 200(3)) and infringement claims run in the Federal Court.

At Artificer Legal we routinely work alongside registered patent attorneys on startup patent matters: sorting out ownership before filing, reviewing the commercial terms, and making sure the patent strategy matches the fundraising and product roadmap. The filing itself is done by the attorney.

Your filing date is the asset that matters most

Every part of this process traces back to one date: the day you first file. That filing date fixes the priority date for everything disclosed in the specification, it is the reference point for novelty, and it is the deadline that drives the 12-month complete application window, the 18-month publication and the 5-year examination request. A single public disclosure before that date can destroy the patent, and no amount of good drafting afterwards will fix it. If you take one thing from this guide, take this: decide whether you are filing, and if you are, file before you show the invention to anyone who is not bound by a confidentiality agreement.

The rest of the process is a sequence of managed deadlines: keep the invention confidential, search the prior art, define the claims, file the provisional and then the complete application within 12 months, request examination within 5 years, respond to the examiner, pay the renewals, and enforce if you need to. Each step is administrative and each one can be done badly, which is why the ownership foundations, the drafting and the deadline management matter as much as the invention itself.