How to Successfully Design Around an Existing Patent in Australia

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Patents are generally a framework for the invention of a new product or design. This framework is your motherboard, wherein it is the foundation of the product and all other enhancements must adhere to it. Patents are ideas of investors to make a product design convenient for everyone. With the endless possibilities the mind can make, the probability of creating a patent similar to others might seem unrealistic.

However, similar designs usually happen in reality. Truth is, all new inventions are influenced by previous designs. No matter how you try inventing a new one that may seem different from others, there’s always a great chance that your patent has already been done by previous inventors. With this, it is a must to do thorough research when inventing a product, and have substantial diligence to avoid infringement and copyright issues.

Yet, how can you make sure that your product is unique compared to others?

If you have a product that has already been poured with all efforts and resources but lacks research on whether or not it is similar to others, you don’t have to disappoint yourself. You can still make a better patent, avoiding copying of similar previous inventions.

Searching for similar patents

The best way to check if your parent already exists or not is to conduct research on patents. Intellectual Property (IP) Australia serves as a library of existing patents, where you will be able to have a comprehensive investigation on your proposed patents.

Yet, requesting for patent information can come costly, time-consuming, and complicated. Thus, you can seek advice through their IP professional to help you with your query. Moreover, if you have a Small Medium Enterprise (SME), you may contact their SME Case Management Service so you can have a single advisor to represent you with your patent application process, much more your query about existing patents beforehand.

This is a useful way to start your invention as this will avoid further delays and copyright issues for your patents. Once your patent is all good and without a single strand of similarity from all other designs (including international patents), then your design can set sail and be invented without any worries.

Patent owner transfer

If you have an existing patent where it is impossible to circumvent enhancements, you may want to try searching along with the Australian Patent Register (APR) and see who owns the design. You might be frustrated to know that your patent already exists but worry not; it is still possible for the ownership to be transferred to you. You may contact the owner for this, and have a signed contract if they agree to surrender their patent to you. More so, even if the Australian Patent Register is not notified yet of the ownership change, the Patents Act 1990 gives you the protection to be the legal owner of the patent via a signed contract. Furthermore, in the case where someone claims that patent as their own without it being registered to the APR, it will not be admissible in court proceedings. Hence, patents need to be registered in the APR.

Competitive Product Information vs Existing Patents

For instance, if you have already created a patent that may seem similar to your competitor, you can still design around it while preventing infringement. Competitive product information paves a way for you to design around a patent, where you can get a step ahead of your competitor.

You may discover significant areas that are not covered by your competitor’s patents; thus you may improve the design and technology patented and patent your improvement. Through this, you can be allowed to commercialize the improvement without having to compensate around the existing patent.

These are just the basics for you to design around existing patents. However, when inventing a product design, it is always non-negotiable to conduct a comprehensive investigation on your patent plan before you spend your efforts and resources towards building one. Always check and recheck so as to avoid infringement from existing patents.

Photo by Wallace Chuck from Pexels


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Written by James Durkin

B.A Business (Marketing Major) @ MIT Australia 2014-2016
Based in Melbourne/Budapest
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