In Australia, most inventors and patent owners understand that there is a need to lodge a patent application before you exploit or secretly use an idea or concept.
Some also are aware of a grace period for Patents. The grace period enables the inventor to validly apply for patent application within 12 months of publicly disclosing the invention.
In 2022, a 6-month grace period will also be coming into play for Designs.
However, should you rely on grace periods?
Our recommendation is NOT to rely on grace periods, unless you have no other choice. Here are some of the main reasons:
The grace period only applies to certain types of applications. So, for example, it does NOT apply to provisional patent applications.
This loophole does not extend to overseas, and most countries do not have a grace period, so you ruin your chances of protection in most other countries. However, the United States also provide a grace period.
If a third party sees and then commercialises the invention before the date of the patent application, the patent owner may not be able to enforce their patent against that third party, which will then have the right to continue their activities.
In view of the above substantial limitations, our advice is not to disclose your invention before filing a patent or design application. Grace periods should only be used as a last resort.
Our Patent Attorneys can help if you need further assistance.
