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Note from 25 August 2021, the innovation patent will cease to exist. After this date, you can only file a divisional innovation patent if it is based on a previously filed patent. Read more about this change in our article.

A patent is an intellectual property right which gives you the exclusive right to exploit your invention. There are currently two types of enforceable patent rights you can file in Australia:  

  • standard patents; and
  • innovation patents. 

However, the Australian innovation patent system will soon no longer exist. The deadline to file a new innovation patent is 25 August 2021. Existing innovation patents filed on or before 25 August 2021 will continue to stay in force until their natural expiry. 

This article explains how and why you should use the innovation patent system before it is gone.

What Is an Innovation Patent? 

An Australian innovation patent lasts 8 years. This type of patent was introduced in 2001 to encourage small to medium-sized businesses to seek intellectual property protection for their innovations. 

While standard patents require a higher level of inventiveness, known as the ‘inventive step’, innovation patents only require an ‘innovative step’. An invention with an innovative step makes a contribution to something that is already out in the public domain. This is more of an incremental improvement than a disruptive invention. 

This means innovation patents are suitable for: 

  • products that have a short market life; 
  • improvements that are not ground-breaking; and 
  • technology that is likely to improve quickly. 

Innovation patents proceed to grant after only a formalities examination. As such, the Patent Office does not examine them to determine whether they are new or have an innovative step until you:

  • officially request this; and
  • pay the official fee.

It is not compulsory that you ever request this examination during the eight year term of an innovation patent. However, you need to request a substantive examination for the innovation patent to be certified and therefore enforceable against an infringer. This means that you can delay or even prevent costs until you are concerned that someone is infringing your innovation patent

Benefits of the Innovation Patent System

Innovation patents are a great tool for small to medium-sized businesses. The main benefits of the innovation patent system are: 

  • a low threshold of inventiveness; 
  • affordability; 
  • strategic benefits in infringement proceedings; 
  • a quick grant process; and 
  • receiving a grant before undergoing substantive examination. 

Whether you currently have a pending standard patent application or have just come up with an invention, the innovation patent may be a great tool for you. 

What Happened to the Innovation Patent? 

Innovation patents have been a popular tool since their inception. 

In a recent review of the innovation patent system, however, the Australian Productivity Commission alleged that the innovation patent was not predominantly being used for its intended purpose. This purpose was to encourage research and development within small to medium-sized businesses.

However, the Australian Productivity Commission reported that the innovation patent was being used as a strategic tool by large businesses to stifle competition. As such, the Commission made the controversial decision to abolish the innovation patent system. 

Can I Still File an Innovation Patent?

While the innovation patent system will inevitably come to an end, you can still file innovation patents for a short period of time. If you believe that you have an innovation to file, now is the time. 

The deadline to file a new innovation patent is 25 August 2021. After this date, you can only file a divisional innovation patent if it is based on a previously filed patent. If you have a standard patent application that may be more suited to be an innovation patent, you can still convert your standard patent application into an innovation patent if the standard patent was filed on or before 25 August 2021.

As innovation patents last for eight years, this means the final expiry date for the last innovation patent will be 25 August 2029. 

What if I Already Have an Innovation Patent? 

To ensure that the phase-out of the innovation patent system runs smoothly, existing innovation patents and innovation patents filed on or before 25 August 2021 will continue to stay in force until their natural expiry. 

Should I File an Innovation Patent? 

You should file an innovation patent if you have an innovation, even if it is in the early stages of development. 

It is important for you to file your innovation patent before:

  • the deadline of 25 August 2021; and
  • disclosing the product to the public

As patents applications can take a couple of weeks to draft and file, you should be careful not to miss the opportunity to file an innovation patent before the deadline. You should speak to an experienced patent attorney as soon as possible to ensure that you file your innovation patent on or before 25 August 2021. 

Key Takeaways 

The innovation patent is a great tool for small to medium-sized businesses. Unfortunately, however, the innovation patent system will soon cease. If you have an innovation, you should consider filing an innovation patent before the deadline of 25 August 2021. 

To file an innovation patent, your innovation must:  

  • be new and undisclosed to the public; and 
  • involve an innovative step. 

If you believe your innovation meets these requirements and you wish to use the innovation patent system before it ceases, contact LegalVision’s patent lawyers on 1300 544 755 or fill out the form on this page.

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