Phase Out of the Innovation Patent
On February 2020, the Australian Government started the 18-month long process of phasing out the innovation patent. Applicants needed to file their innovation patent applications before the 25 August 2021 deadline.
Innovation patent applications filed on or before 25 August 2021 will continue to be in effect until they expire so as not to disadvantage current rights holders.
A divisional innovation patent application can still be filed after the 25 August 2021 deadline as long as the parent application for the divisional was filed on or before the deadline date.
Similarly, a standard patent application can still be converted to an innovation patent application provided that the standard patent application was filed on or before 25 August 2021.
Innovation patent holders can still continue to request certifications at a time of their choosing.
Standard and Provisional Patents
It is possible to apply for a standard patent instead of an innovation patent for your invention.
Another option is to file a provisional patent. Provisional applications act as a “placeholder” through a priority date to signal your intention to file a full patent application at a later date.
Notwithstanding that a provisional application doesn’t give the protection of a full patent, it does give the applicant up to 12 months to make a decision before proceeding with the patent application.
Why was the innovation patent phased out?
The Innovation Patent was introduced by the Australian Government in 2001 to help small to medium-sized businesses protect their intellectual property quickly and cost-effectively. The requisites for acquiring an innovation patent were less strict.
Applicants were only required to show that their invention had an ‘innovative step’ in contrast to that of a standard patent which required an ‘inventive step’. The innovation patent was designed for inventions that have a short market life and those inventions that are in the future easily replaced by newer and upcoming ones. That is why the protection period was limited to eight years.
In 2016, the Productivity Commission found that the innovative patent was not meeting its objectives of encouraging research and development.
The Commission recommended the innovation patent system be abolished. The Federal Government adopted these recommendations with the finding that the low standards for innovation patents did not encourage true invention and competition. The grant of innovation patents instead resulted in investors being deterred from financing SMEs because of the uncertainty around the possibility of infringements as well as the business’ freedom to operate.
The international patent system does not support the Australian innovation patent system. Therefore, innovation patents are not acknowledged overseas and can’t be used to establish foreign patents. The Australian innovation patent also exposes the SME’s invention itself and they are therefore vulnerable to international copycats.
Large firms have widely used innovation patents to smother SME’s freedom to operate and its ability to bring a product to compete in the market. The methodology was to file several innovative patents for one encompassing invention and making a small variation for each application so as to create ‘patent thickets’.
Takeaway Points:
- The innovation patent was phased out on 25 August 2021 and you can no longer apply for one.
- The innovation patent was introduced by the Australian Government in 2001 to help small to medium-sized businesses protect their intellectual property quickly and cost-effectively.
- The innovative patent was not meeting its objectives of encouraging research and development but was actually damaging the small to medium enterprises it was meant to support.
- Large firms have widely used innovation patents to smother the SME’s freedom to operate and its ability to compete in the market.
- Further dedicated support can be obtained through the SME case management service, SME fast track service, a dedicated outreach program and an online portal.
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Bianca “Bianx” Ysabel, Digital Administrator
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Disclaimer. The material in this post represents general information only and should not be taken to be legal advice.
