Australian Innovation Patent
This decision was reached in late February 2020 after the Intellectual Property Laws Amendment Bill 2019 received Royal Assent. This meant that the Bill officially became a law in Australia. As a result, the law will come into effect in 18 months time from 26th February 2020.
- All existing innovation patents will remain active until they expire
- Save the date: 25th August 2021. This is the last day that you will be able to file an Australian Innovation patent application
- After 26th August 2021, you will no longer be able to file any new Innovation patent applications
- However, you will still be able to file divisional Innovation patent applications, provided the parent application is filed on or before 25th August 2021.
- It’s also important to note, you’re still able to convert a standard patent application into an Innovation patent application provided the standard patent is filed on or before 25th August 2021.
- The expiration date for all Innovation patents is 25th August 2029.
So the key date to remember and make note of is 25th August 2021. This is the absolute last day for filing any new application towards the Innovation Patent System.
Why is the innovation patent being phased out?
This decision to remove the Innovation patent is a part of the Australian Government’s commitments towards remaining an IP System that fits the needs of Australian SMEs.
Since its inception, the innovation patent hasn’t provided an adequate solution for what it was originally aimed at. In fact, economic evidence has estimated that the innovation patent system has a regulatory cost of around $11M per year to all Australian business! The Innovation patent has also failed to stimulate research and development, while allowing big businesses to block innovation from SMEs.
#1 Disadvantage – Innovation patents are used by large firms as a strategic tool to stifle competition
One of the key problems with the innovation patent, is that large businesses can use the innovation patent system in order to create a dense web of overlapping intellectual property rights that focus on an SME’s product. As a result, making it very difficult to commercialise any new related technology and sometimes forcing innovators to seek licensing deals to compete on the same playing level.
#2 Disadvantage – Innovation patents overly generous
One of the key concerns is that an innovation patent is overly generous given that it has a very low inventiveness threshold but the same remedies against infringement as a standard patent.
The low “innovative step” threshold has seen the registration of a number of low value patents which reduces one of the underlying positives that patents provide for attracting finance for commercialization. It has also created uncertainty for other inventors when it comes to determine patent infringement.
In turn, this has given rise to a proliferation of difficult-to-revoke certified innovation patents that were enforceable at law.