Protecting your invention in Australia, IP rights, timing and launch requirements

Say you have built something genuinely new: a device, a process, or a piece of software that does what nothing else does. Before you demo it to a manufacturer, pitch it to an investor, or put it on a website, a handful of legal decisions will determine whether what you built stays yours. In Australia those decisions reduce to three questions: which parts of the invention can be protected and with which right, when you must act to secure that protection, and what the law requires before you can sell it. This guide works through them in the order they tend to bite.

What each IP right protects, and which part of your invention it covers

Australian law gives you five tools, and most successful inventions end up using several of them at once. The skill is matching the tool to the part of the invention it actually protects:

Patents: protect the functional invention, the product, process or method. Under s 18 of the Patents Act 1990 (Cth), an invention must be a manner of manufacture, new, inventive and useful. A standard patent runs for 20 years from filing, which is why it is the heavyweight option for hardware, chemical processes and inventions embedded in software. For pharmaceutical substances, the term can be extended by up to five years to make up for the time lost to regulatory approval. IP Australia examines and grants Australian patents.
Trade marks: protect the brand, the name, logo or slogan that tells a customer the product came from you. A registered trade mark lasts 10 years and is renewable every 10 years, so it can effectively last as long as you keep trading.
Designs: protect the visual appearance of a product, its shape, configuration, pattern or ornamentation, not how it works. Under the Designs Act 2003 (Cth), a design must be new and distinctive, and registration runs for five years, renewable once to a maximum of ten.
Copyright: protects original expression automatically, including source code, technical drawings, manuals and marketing material. There is no registration system for copyright in Australia, so it exists from the moment the work is created and the practical task is proving who created it and who owns it.
Confidential information: protects what you never publish: algorithms, formulations, manufacturing know-how. There is nothing to register; the protection comes from keeping the information secret and binding everyone who sees it to confidentiality.

Two mistakes follow from this menu. The first is treating the patent as the only option: a distinctive brand name has no patent protection, and a product shape that is not patentable can still be protected as a registered design. The second is relying on copyright for functional features. Copyright protects the expression, the code or the drawing; it does not stop a competitor building the same function, which is what a patent is for.

The timing trap: disclosure can destroy a patent before you file

A patent depends on novelty. Under s 18 of the Patents Act, the invention must be new and inventive when compared with the prior art base, which means everything already made public. The moment you publish, demonstrate or sell the invention, you create prior art against yourself, and in most countries that would be fatal to any later patent.

Australia is more forgiving than most. Under s 24 of the Patents Act, your own disclosures, and disclosures by someone who obtained the information from you, are disregarded for novelty and inventive step if a complete application is filed within 12 months. IP Australia describes this as the 12-month grace period.

Treat it as a backstop, not a plan. The grace period rescues your own disclosure, but it does nothing if an independent third party publishes the same idea first. It is also an Australian rule: most overseas jurisdictions do not offer the same window, so disclosing before filing can cost you protection in the markets that matter most for exporting. The safe sequence is to file before you tell anyone.

Timing also shapes the filing process itself. A provisional application is a cheaper first step that establishes a filing date and gives you 12 months to file a complete application. Within that window you can keep developing and testing, but if the complete application is not filed in time, the provisional application lapses and the early filing date is lost.

Designs have a similar backstop: under s 17 of the Designs Act, your own publications or uses of the design within the 12 months before the priority date are disregarded when deciding whether it is new and distinctive.

One more thing worth knowing, because older advice still gets it wrong: the second-tier innovation patent is gone. No new innovation patent applications could be filed after 26 August 2021, and the system has been wound down. For inventors today, the standard patent is the only route, and the clock starts at filing.

Which regulators you will meet before you can sell

Protection does not put the product on the shelf. Depending on what you have built, one or more regulators need to be satisfied first, and their timelines can run for months or years, so the earlier you identify them, the better:

TGA and therapeutic goods: a medical device or therapeutic good generally must be included in the Australian Register of Therapeutic Goods (ARTG) before it can be supplied in Australia. The Therapeutic Goods Act 1989 (Cth) makes it an offence and a civil penalty contravention to supply or manufacture a device that is not included in the Register (ss 41MK and 41MIB). The path to inclusion depends on the device's classification, and it usually involves conformity assessment, clinical evidence where required, labelling and post-market obligations.
CASA and aviation safety: products used in aviation or that affect flight safety generally fall under the Civil Aviation Safety Authority and the Civil Aviation Safety Regulations, with rigorous testing, documentation and change-control requirements. The Australian Transport Safety Bureau separately investigates accidents and incidents.
Australian Consumer Law: the ACL, which is Schedule 2 of the Competition and Consumer Act 2010 (Cth), applies to every product sold in Australia, whether or not it is otherwise regulated. It gives consumers automatic guarantees such as acceptable quality, prohibits misleading or deceptive conduct (s 18), and sets product safety standards and recall obligations. Since November 2022 the maximum penalties for the most serious contraventions of the penalty provisions are the greater of $50 million, three times the benefit obtained, or 30 per cent of adjusted turnover.
Privacy Act: if your product handles personal information, the Privacy Act 1988 (Cth) applies to most businesses with annual turnover above $3 million (s 6D), and to others in specified circumstances such as holding health information. Covered businesses must comply with the Australian Privacy Principles, and under the Notifiable Data Breaches scheme in Part IIIC of the Act they must notify the OAIC and affected individuals when an eligible data breach is likely to cause serious harm.

Whatever your industry, a compliance-by-design approach beats retrofitting. Identify the standards that apply, whether ISO, IEC or AS/NZS, plan the testing and validation, and keep the records as you iterate. That documentation is what certifications, audits and partner due diligence will ask for.

Licence, assign or build: the three ways to commercialise

Once the IP and compliance position is in place, the question becomes how the invention makes money. Three paths dominate, and they can be combined over time:

Licensing: you keep ownership and grant someone else the right to use the IP, typically within a defined territory or market, for upfront fees, royalties or both. This suits inventors who want to scale through partners with existing manufacturing or distribution rather than build a company. A licence needs to settle scope, exclusivity, improvements, sublicensing, quality control, reporting and termination.
Assignment: you transfer ownership of the IP outright, usually as part of a sale, investment or restructure. An assignment must be documented in writing, and it is the tool that creates a clean chain of title: the thing investors and acquirers will ask to see. If you want to keep using the invention after selling it, negotiate a licence back.
Building: you manufacture, market and sell the product yourself. The work shifts to operations, supply chains, quality systems and go-to-market agreements, and the patent portfolio becomes a central part of your valuation, so the strategy is to keep filing as you grow.

Making sure the business actually owns the invention

Who invented the thing and who owns the legal rights are different questions, and the gap between them is where value leaks. Three steps keep them aligned:

Choose a structure: A company is a separate legal entity and offers limited liability, which matters once you sign manufacturing, supplier and customer contracts. Sole trader and partnership structures are simpler but leave you personally exposed.
Move the IP into the right entity: If you created the invention personally, or through a different entity, transfer it to the company that will commercialise it with a formal IP assignment. Without it, the business may not own its core asset, and an investor or acquirer will find a hole in the chain of title.
Document founder and staff arrangements: Where there is more than one founder, a shareholders agreement sets out ownership, roles, decision-making, new share issues, dispute resolution and exits. Employment and contractor agreements should assign IP created in the role to the business, impose confidentiality obligations, and include restraints where appropriate.

The contract stack most innovators end up needing

Different inventions need different documents, but most will recognise this core set:

NDA: before sharing technical details with potential partners, manufacturers, testers or investors.
IP assignment: to move IP into the operating company and tidy up ownership across founders, contractors and suppliers.
IP licence: if you partner with a distributor or manufacturer, to set the rules for use, quality control, royalties and territory.
Shareholders agreement: to keep founder roles, decisions and exits clear as you grow.
Website terms and sales terms: to manage warranties, liability and returns consistently with the ACL.
Privacy policy: if you collect personal information, a compliant policy and internal privacy practices.
Employment contracts: with IP ownership, confidentiality and post-employment restraint provisions.

Where Artificer Legal can step in

Several points in this process are judgement calls that no article can make for you: whether your invention clears the novelty and inventive-step bar and what the search results really mean; whether the grace period rescues a disclosure that has already happened or whether you need to file immediately; which overseas markets require filing before any disclosure; how a medical device will be classified under the TGA rules and what evidence the regulator will want; and how a licence or assignment should be drafted so you keep the rights you intend to keep. A patent attorney handles the searches, drafting and prosecution of the filings. A commercial lawyer can advise on the strategy behind them, draft the licence, assignment and founder documents, review your customer and privacy terms against the ACL and the Privacy Act, and keep the chain of title clean for the day an investor asks to see it. That is where Artificer Legal comes in: a short conversation about what you have built, what you have already disclosed, and where you want to sell it will tell you which of these steps are urgent and which can wait.

The decision that shapes everything: your first public disclosure

The decision that shapes everything else is not which IP right to file or which regulator applies. It is the moment you first tell anyone about the invention. Before that moment you control whether the invention stays novel; after it, you are relying on Australia's 12-month grace period, which only covers your own disclosure and does nothing for most overseas markets. The filings, the structure, the contracts and the compliance program can all be sequenced and fixed. The disclosure clock cannot be rewound, so the working rule is simple: file before you talk, or at least talk to a lawyer before you talk.

To pull the key points together: patents, trade marks, designs, copyright and confidentiality each protect a different part of an invention, and most commercial products need several; a standard patent runs for 20 years and depends on filing before, or within 12 months of, your own disclosure; the innovation patent no longer exists; medical devices face TGA approval and aviation products face CASA rules before supply, while every product must meet the Australian Consumer Law and, where relevant, the Privacy Act; and a company structure, formal IP assignment and the right agreements are what turn an invention into an asset a business can own, licence and sell.