Innovation in Australia

The Intellection Property Laws Amendments Act 2020 mandated the end of the Innovation Patent system, which is due to be phased out 26 August 2021.

The Innovation Patent has been the work horse of small to medium sized businesses trying to capture and protect valuable innovation.

To be protected under the innovation patent system, an invention doesn’t have to satisfy standard inventive step requirements. Instead, the invention simply needs to include a novel feature of difference that contributes to the way the invention operates.

Essentially, the innovation patent system offers a short term (8year) patent designed to protect incremental inventions - inventions that otherwise wouldn’t satisfy the patentability requirements of a standard patent.

Incremental innovations were considered important to economic growth and development and the innovation patent was a reward to incentivize business investment in such incremental industry improvements.

The low validity threshold meant an innovation patent could be easily secured but the corollary was the innovation patent was difficult to invalidate, without a direct prior anticipation of the invention.

The innovation patent system was also seen as a useful litigation tool by Big Pharma because the rights available with an innovation patent are the same as a standard patent so an innovation patent could be targeted to an infringement, filed as a divisional application from a longer term parent application, and certified through to an enforceable right in a matter of months to assert against a competitor.

Use of the innovation patent in that context was tending to stifle competition instead of encouraging economic growth.

Some consideration was given to raising the validity threshold requirements to make an innovation patent more difficult to obtain but in the end the Productivity Commission simply recommended the innovation patent be abolished.

This is an unfortunate result for small to medium businesses but the good news is:

  • Existing innovation patents and innovation patents filed on or before 25 August 2021 (AEST) will continue in force until expired. This will ensure current rights holders are not disadvantaged.

  • You will still be able to file a divisional innovation patent application after 25 August 2021 (AEST), provided that the parent application for the divisional was filed on or before 25 August 2021.

  • You will still be able to convert a standard patent application to an innovation patent application provided the standard patent application was filed on or before 25 August 2021 (AEST).

  • No extensions of time will be available for late filings of innovation patents.

  • You will not need to bring forward the certification of existing innovation patents. You can continue to request certification at a time of your choice.

So, if you have any innovative products or processes you would like to protect, please get in touch early to discuss the option of filing an innovation patent application before the deadline of 25 August 2021.

Download a visual outline of the process below.

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