How long does it take to get a patent?

CalenderMany people ask how long the patent application process takes. The short answer is “a few months to over five years”. That usually leads to the next question: why does the time vary so much?

For Australian patent applicants wishing to protect their invention outside Australia with a standard patent, a very common path is to start the process by filing a provisional application, followed by filing a PCT application and then a national phase application in each chosen country. The provisional and PCT application stages last a combined total of two and a half years.

The time for completion of the national phase depends on the country, but generally ranges from around one year to five years. The main reason for this variation is the time it takes to examine the patent application and determine whether it meets the local rules for patentability including novelty, inventiveness, and industrial applicability. This examination process is labour intensive and has led to backlogs in some countries in particular technical areas.

In some countries, the patent examination process is completed in as little as a few months because there is no detailed examination of the patentability of the invention. This is the case for Australian innovation patents, which (unlike Australian standard patents) are not examined before being granted. Surprisingly, an Australian innovation patent is usually granted within a month of filing the complete application. The catch is that an innovation patent only lasts eight years and cannot be enforced until it is formally examined.

If you need a standard patent in a hurry, a number of options are available, such as requesting expedited examination, but it is best to speak to a patent attorney about the pros and cons of each option.

How quickly do you need a patent?

The slow boat

People who are unfamiliar with patents are often surprised that it is not necessarily desirable for patents to be granted quickly. Indeed, many patent applicants are happy for the patent application process to go as slowly as possible.

That’s because a longer patent application process has the effect of stretching out the patenting costs over a number of years. This gives inventors time to verify the commercial viability of the technology and possibly raise investment funds or generate revenue from the technology. It also allows applicants to tailor the application as the commercial landscape unfolds.

The express train

Although there are cashflow reasons for wanting to stretch out the patent application process, there are also benefits in completing the process quickly. Until a patent is granted, the patent application is said to be “pending”. The advantages of having a granted patent instead of a pending patent application include:

  • Only a granted patent can be legally enforced. That means legal action can only be taken against infringers after a patent is granted.
  • A granted patent provides certainty about the patent rights.
  • It tends to be easier to sell licences for a granted patent than a pending patent application.
  • A new technology may present a more attractive investment opportunity when protected by a granted patent.

There are many critical decision points along the way to obtaining a patent, but each decision will depend on individual circumstances and goals. There are options for speeding up or slowing down the patent application process, but there can be other consequences too. An experienced patent attorney will be able to help you chart the best course for you.

Justin Blows

j.blows@phoenixip.com.au