How to File a Patent in Australia: 7 Essential Steps

You’ve filed a provisional at home, or a PCT application is ticking toward its deadline, and now the question is concrete: how do you actually lock down protection in one of the Asia-Pacific’s biggest markets? Learning how to file a patent in Australia comes down to a short list of decisions — which filing route to use, when to request examination, and what IP Australia expects at each stage. One thing to settle up front: Australia is not a member of the European Patent Convention, so you cannot reach it by validating a European patent. It needs its own national filing. Here is the practical sequence, with the traps that cost applicants their rights.

How to File a Patent in Australia: The Three Routes In

There are three ways in, and the right one depends on where you already are in the process. Because Australia sits outside the European patent system, there is no shortcut through a European grant — the application is filed directly with IP Australia, the national office.

1. Direct national filing. File a standard patent application straight with IP Australia. Sensible when Australia is your first or only target.
2. Paris Convention route. If you filed elsewhere first, you have 12 months from that earliest priority date to file in Australia and claim priority.
3. PCT national phase. If you filed an international (PCT) application, you enter the Australian national phase — and here Australia is generous, allowing 31 months from the earliest priority date rather than the usual 30.

In practice most overseas applicants reach Australia through the PCT national phase, because it buys the most time to see whether the market justifies the spend. Whichever route you take, the end product is the same: a standard patent application examined under the Patents Act 1990.

The Standard Patent Is Now the Only Option

For years Australia offered a quick, cheaper second-tier right called the innovation patent. That option is gone. The innovation patent was closed to new filings and phased out from August 2021, so the standard patent is now the only route to a full enforceable patent.

A standard patent runs for up to 20 years from the filing date (longer for certain pharmaceuticals that qualify for an extension of term). If you were counting on the fast, examination-light innovation patent for a short product cycle, rethink the strategy — it no longer exists, and a standard patent is a substantive, examined right.

The 31-Month PCT National Phase Deadline

Miss this date and you can lose the ability to patent the invention in Australia entirely, so it is the single most important number in this article. You have 31 months from the earliest priority date to enter the Australian national phase from a PCT application.

To enter, you file the national phase request and pay the fee; the specification can be in English, and translations are required where the international application was not in English. If you do miss the deadline, all is not necessarily lost — IP Australia can restore the right where the failure was unintentional or occurred despite due care, but restoration is discretionary and never something to rely on. Diarize the 31-month date the moment the PCT is filed.

Coming from a US-origin application? Make sure any foreign filing license and export-control questions were cleared before the invention went abroad — that is a US-side obligation, not an Australian one, but it bites on exactly these cross-border filings.

Requesting Examination (It Is Not Automatic)

Here is where applicants trip up: filing does not put your application in the examination queue. Examination is not automatic in Australia — you have to request it, and pay a separate examination fee, before IP Australia will look at the merits.

You can request examination voluntarily at any time, but there is a backstop: IP Australia can issue a direction to request examination, after which you have two months to act. In any event examination must be requested within five years of the filing date. Once examination starts, the examiner assesses novelty, inventive step and other requirements; you respond to any objections, and the application proceeds to acceptance.

Acceptance is advertised, and a three-month opposition period follows during which a third party can challenge the grant. Clearing opposition — or avoiding it — is far easier when the claims were drafted tightly and the prior art was understood before filing, which is why a portfolio and prior-art review pays for itself.

Fees, Drawings and What to Budget

Australian official costs come in stages rather than one lump sum: a filing fee, an examination fee when you request it, an acceptance fee, and renewal (maintenance) fees that begin from the fourth anniversary and climb each year to discourage holding dead weight in the portfolio. IP Australia publishes the current schedule, and fees are adjusted periodically, so confirm the live figures before you budget.

Don’t underestimate drawings. IP Australia expects formal drawings that clearly show every feature referenced in the claims, in black-and-white line form, properly numbered and labelled. Poor figures draw objections and delay acceptance. Professional patent drawings prepared to office standards remove a whole category of avoidable back-and-forth.

• Government filing fee on lodging the standard application
• Examination fee, paid when you request examination
• Acceptance fee once the examiner is satisfied
• Annual renewal fees from the fourth anniversary onward
• Attorney and drawing-preparation costs on top of the official fees

First-to-File, the Grace Period and Common Mistakes

Australia is a first-to-file jurisdiction: if two parties race to the same invention, the earlier filing date generally wins, regardless of who invented first. File before you disclose.

Australia does offer a 12-month grace period that can excuse certain of your own public disclosures made before filing, which is more forgiving than much of Europe. But treat it as a safety net, not a plan — relying on it can still sink your rights in other countries that have no equivalent. The most common and most damaging mistakes we see are: letting the 31-month national phase date lapse, going public before filing, and forgetting to request examination until a direction forces a scramble.

Enforcing Your Australian Patent

A granted Australian patent is enforced in the Federal Court of Australia, which hears both validity and infringement nationally. Remedies include injunctions, damages or an account of the infringer’s profits, and delivery up of infringing goods. The court has specialist judges experienced in patent matters, and the registry in Sydney sees the heaviest IP caseload.

Because validity and infringement are decided together in the same forum, an accused infringer will routinely attack your patent’s validity as a defence — another reason the quality of the original drafting and search work determines how the dispute ends.

Australia also offers a useful pre-litigation tool: non-binding preliminary search and examination, and the ability to request expedited examination where there is a commercial need, such as a looming infringement. If enforcement is a realistic prospect, build that into the filing plan from the start rather than treating it as a problem for later. A patent drafted with the Federal Court in mind — clear claims, a clean prosecution history, and figures that match the specification — is far cheaper to enforce than one patched together under deadline pressure.

File in Australia With Confidence

PerspireIP helps innovators and counsel move cleanly from a PCT or priority application to a granted Australian patent — prior-art and patentability analysis, office-standard drawings, and filing strategy across jurisdictions. Explore our Australia services, or see how we support filers in Sydney and Melbourne. Contact us to map your Australian filing before the next deadline.

This article is general information, not legal advice; consult a qualified attorney for your situation.

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