Whether a patent will be truly effective in keeping competitors away from your idea depends, amongst other things, on how well your patent application is written and to what extent it is drafted to anticipate how copiers might try to get around it.
The lowdown on the patent application process
Lodging an Australian provisional patent application is usually the first step in obtaining one or more patents anywhere in the world and will protect your invention for 12 months. After filing a provisional patent application, a patent search is usually performed to attempt to identify relevant prior art. This will give you an indication of how likely it is that your patent application will succeed, and how to prosecute your patent application in later stages of the application process.
To pursue further patent protection, a complete application will then have to be filed within 12 months of filing a provisional application. This can take the form of a PCT application that will mature into national phase applications lodged in the countries in which you seek protection, or direct applications filed individually in the countries you elect.
Drafting a patent specification
There are many considerations to keep in mind when drafting a specification for a patent application, for example:
Are the claims broad enough to cover ways in which copiers might try to replicate your idea?
Generally speaking, the claims in your specification should be drafted in broad terms to afford you the widest protection against imitation. Over-specifying and overlooking different versions of your invention imposes undue limitations that can provide loop holes that infringers can exploit to make something very similar to your product.
Will your patent application come out of examination, particularly in the United States and Europe, in a state in which it can still be used to block copiers?
A common misconception is that patent claims do not change from the way they are initially drafted. During examination, patent claims normally have to be amended to differentiate from what has been done previously, known as the "prior art". Some amendments may be of little consequence while others may render your patent completely ineffective.
The catch is that the kinds of changes you are allowed to make will depend on the information that has been included in your patent specification – a decision that is normally made a number of years prior, at the provisional patent application stage.
As you can see, it is critically important to spend the time identifying the angles that competitors may come from and to cover the idea as thoroughly as possible from the outset. The risk of spending significant amounts of money on patenting your idea, only to be side-stepped by a clever copier at the last moment, needs to be mitigated as much as possible. This is why it is vitally important to have your patent application professionally prepared by a patent attorney.
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The team at Baxter IP pride themselves on observing the highest standard in quality of work and advice to give their clients an unrivelled edge in their attempt to secure patent rights internationally and then capitalise on their IP investment.
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