Farewell to Australia’s Innovation Patent System
Key points:
- Australia’s innovation patent system is being scrapped.
- Innovation patent applications may be freely filed until 25 August 2021.
- After 25 August 2021, innovation patent applications can be filed only if they are based on (non-provisional) patent applications with a filing date of 25 August 2021 or earlier.
Australia’s Innovation Patent System
Introduced in 2001, the innovation patent system was a symbol of the Australian Government’s commitment to supporting small to medium enterprises (SMEs). The system was conceived with a lofty goal in mind: fostering and protecting local innovation. But now the innovation patent system is on death row.
In this post, we outline the benefits of innovation patents and what you need to do so you don’t miss out on securing strong innovation patent rights.
Innovation patents vs standard patents
Innovation patents are a powerful tool suited to protecting incremental advances in technology.
Compared with standard patents, innovation patents are typically cheaper and quicker to apply for but still provide similarly strong enforceable patent rights.
To obtain an enforceable innovation patent, the invention only needs to involve an “innovative step”, which is easier to show than the “inventive step” required of standard patents.
- Protection period of up to 20-25 years
- Invention must involve an “inventive step“.
- Generally more time and cost-intensive
- Examination is mandatory
- Protection period of up to eight years
- Invention must involve an “innovative step” (lower than an “inventive step”)
- Generally less time and cost-intensive
- Examination is optional
In our experience assisting local SMEs, not all technological advances are giant leaps suited to standard patent protection.
Instead, many technological advances involve incremental steps forward. Such advances often involve substantial R&D expenditure and are worthy of protection — this is where the innovation patent system comes in (but will soon leave a gaping vacuum).
Is the innovation patent right for you?
Below are some indicators that patent protection via an innovation patent might suit you:
- You have created something new but think others would probably come up with the same thing given time.
- You would be happy with a maximum patent term of eight years.
- Your invention has a short lifespan.
- You want a cheaper and faster route towards patent protection for your invention.
- You are having examination difficulties with your standard patent application.
- You have an invention that could become the subject of litigation (innovation patents can be easier to enforce and defend because there are fewer questions about validity).
What can be protected?
The types of inventions that can be protected by a standard patent can just as easily (if not more easily) be protected by an innovation patent. The following list is a small selection of example subject matter well-suited to innovation patents:
- Incremental product improvements
- Production and manufacturing equipment
- Simple medical and mechanical devices
- Packaging, containers and enclosures
- Mass-produced tools and fittings
- Fast moving consumer goods
- Sporting goods and toys
What should you do?
To preserve your ability to protect your invention with an innovation patent, you must:
- File your innovation patent application by 25 August 2021; and/or
- File a standard or PCT patent application (designating Australia) by 25 August 2021.
We expect a spike in application filings before the 25 August 2021 deadline; as such, if an innovation patent is in your sights, get in touch with your patent attorney as soon as possible to discuss how to best proceed.
