Who is Eligible for Patent Filing Australia
Any applicant who designates Australia in their PCT application may enter the national phase filing. Eligible filers include:
- Individual inventors
- Corporations and multinational enterprises
- Universities and R&D institutions
- SMEs and startups
- Joint applicants and assignees
- Legal successors in title
Representation Requirement
Foreign applicants are not required to have an Australian address for service at filing, but must provide one before examination or substantive action.
Most foreign applicants appoint an Australian patent attorney to handle prosecution and formalities.
Entitlement / Assignment Requirements
If the applicant is not the inventor, evidence of entitlement must be provided.
Assignments must be:
- Signed
- Simple copies accepted (no notarization/legalization required unless requested)
Australia is one of the most flexible jurisdictions in terms of document formalities.
Deadline For Patent Filing Australia– 31 Month Rule
Australia applies:
- 31 months from the earliest priority date for PCT national phase entry.
Australia’s 31-month deadline is fixed and well-known for allowing maximum flexibility compared to jurisdictions using 30 months.
Extensions After Expiry of the 31-Month Deadline
If an applicant misses the 31-month deadline:
- Late entry is possible through a request for extension of time,
- The applicant must demonstrate the delay was unintentional, and
- Pay the applicable extension fee.
Australia is one of the more generous jurisdictions regarding late national entry.
However, late entry adds cost and administrative complexity.
Applicants should ideally meet the 31-month deadline.
Filing Language for Filing in Australia
The official language of IP Australia is English.
If the PCT application is not in English:
- A verified English translation must be filed.
- It should be accurate, as translation errors may lead to enforceability issues.
Australia has flexible translation timing, but accuracy is essential.
Key Documents Required for Patent Filing Australia
To enter the national phase in Australia, applicants must file:
- A copy of the PCT application (automatically provided by WIPO after PCT Filing)
- English translation (if required)
- Applicant and inventor information
- Attorney or agent appointment (if applicable)
- Sequence listing (if any)
- National phase filing fee
- Completing the request form for national entry.
POA / Assignment Requirements
| Document | Notarization? | Legalization? | Notes |
| Power of Attorney | Not required | No | Only needed for direct representation if required |
| Assignment | Simple signed copy | No | Can be filed anytime during prosecution |
Australia is extremely applicant-friendly with respect to formalities.
Search and Examination Procedure – Overview
Australia follows a robust, internationally aligned examination process.
Substantive Examination Includes:
- Novelty/Patentability Search
- Inventive step
- Utility
- Sufficiency and clarity of disclosure
- Eligibility (manner of manufacture)
- Support and descriptive basis
- Unity of invention
Australia is known for examiners with strong technical backgrounds and adherence to a transparent examination manual (Australian Patent Manual of Practice and Procedure).
Examination Process and Office Actions
Request for Examination Required
Australia requires a formal request for examination, which triggers substantive examination.
Office Actions (Examination Reports)
During examination, IP Australia may issue:
First Examination Report (FER)
- Subsequent examination reports if issues remain
Common objections include:
- Lack of inventive step (obviousness)
- Clarity or support issues
- Insufficient disclosure
- Lack of unity
- Eligibility issues for software/biotech
- Claim amendments exceeding original disclosure
Applicants respond with:
- Amendments
- Legal arguments
- Examiner interviews (informal consultations)
If the application satisfies all patentability criteria, IP Australia issues an Acceptance Notice, leading to a grant.
Deadline for Request for Examination
The request for examination must be filed:
- Within 5 years from the PCT international filing date, or
- When directed by the Commissioner of Patents (Direction to Request Examination)
Failure to file the examination request results in lapse/abandonment.
Australia’s examination window is flexible, allowing applicants to time their filings strategically.
Publication Process and Legal Impact
Australian PCT national phase applications are published automatically at the 18-month stage, unless already published through WIPO.
Legal Effects of Publication
After publication:
- The application becomes public
- The applicant obtains provisional protection rights
- Damages for pre-grant infringement may be available after grant if the infringer had knowledge of the published claims
Publication enhances transparency and provides early enforceability advantages.
Grant Process and Enforceability
Upon acceptance, the applicant must:
- Pay the acceptance fees
- Comply with any formalities
- Wait for a statutory opposition period (3 months)
If no opposition is filed, the patent proceeds to grant.
Enforceability in Australia
A granted Australian patent provides rights to:
- Prevent unauthorized making, using, selling, or importing the invention
- Sue infringers in Federal Court
- Seek injunctions
- Claim compensatory and additional damages
- Request seizure or destruction of infringing goods
- Use customs border enforcement mechanisms
Australia has strong judicial enforcement and experienced IP courts.
Patent Validity Term
Australian patents have:
- 20-year validity from the international filing date.
Pharmaceutical patents may be eligible for Patent Term Extension (PTE) of up to:
- 5 additional years (maximum term = 25 years)
PTE is available if regulatory delays affect marketing approval.
Typical Time to Obtain a Patent in Australia
Expected timelines:
- 3–5 years (standard examination)
- 1–2 years (expedited/streamlined examination)
- Faster timelines for simple mechanical inventions
Australia offers mechanisms to accelerate prosecution (e.g., expedited examination requests).
Annuities and Maintenance Procedure
Renewal fees must be paid yearly starting from the:
Annual fees increase gradually, reflecting increasing commercial value.
Late payment:
- Allowed with a surcharge during a grace period
- Failure results in a lapse, with a possible restoration mechanism
(based on unintentional failure and evidence)
Official Government Fees for Patent Filing Australia (Approximate – 2025 Reference)
A. Filing Fees
| Fee Type | Amount (AUD) |
| National Phase Filing Fee | ~AUD 450 |
| Excess Page Fee | None |
| Excess Claims Fees | None |
B. Examination Fees
| Fee Type | Amount |
| Request for Examination | ~AUD 500–600 |
C. Acceptance & Grant Fees
| Fee Type | Amount |
| Acceptance Fee | ~AUD 250 |
| Grant/Sealing Fee | Included |
D. Annual Maintenance Fees
| Year | Fee (AUD) |
| Years 4–9 | ~AUD 320–350/year |
| Years 10–14 | ~AUD 500–550/year |
| Years 15–19 | ~AUD 1,000–1,200/year |
| Year 20 | ~AUD 1,400–1,500 |
Fees have escalated significantly over the last decade, reflecting patent value.
Utility Model Protection in Australia
Australia abolished its Innovation Patent (utility model) system as of August 2021.
- No new utility model (innovation patent) applications can be filed.
- Only standard patents are available.
Applicants must pursue the standard patent route.
Australia Patent Office and Official Website
IP Australia
Official Website: Australia Patent Office
Provides access to examination manuals, online filing, fees, forms, and guidelines.
