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.
Just because an invention is not completely new, does not mean it cannot qualify for patent protection at all. Where the invention does not quite establish an invention step (for the standard 20 year patent) then the applicant may be able to show the less onerous 'innovative step' for a shorter ‘innovation patent’, which lasts for 8 years.
The standard for an innovation patent is lower because the length of the monopoly over the invention is shorter. An innovation patent can be a relatively quick and inexpensive way to secure protection for:
The following table compares the main differences between an ‘inventive step’ and an ‘innovation step’.
Inventive Step |
Innovative Step |
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Application. Applies to standard patent applications. |
Applies to innovation patent applications. |
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Higher inventive threshold. The ‘inventive step’ criterion is high as an invention must be entirely non-obvious to a person skilled in that field. |
Lower innovation threshold. The ‘innovative step’ criterion asks whether the invention makes a substantial advance over existing technology. This advance does not have to be completely non-obvious, so the innovative step criterion is lower than the ‘inventive step’ requirement for a standard patent.
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Longer protection. Having an inventive step qualifies an invention for a standard patent protection term of 20 years. |
Shorter protection An innovation patent is granted 8 years of protection. |
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Patent examination mandatory It is mandatory for the Patent Office to examine a standard patent application that claims to have an inventive step. Patent protection is granted only upon successful examination. |
Patent examination not mandatory If an invention claims to have an innovative step, no patent examination is required unless specifically requested. Due to no examination, the patent grant is quicker and easier than for a standard patent. |
Adapted from: A Guide to Applying for your Patent. Australian Government: IP Australia; p.9; 2014.
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.