If you have created something new and inventive or innovative, you can protect it from competitors by obtaining a patent. As the owner of a patent, you have the exclusive legal right to market the patent and stop competitors from making, using, selling or benefiting from your invention. There are two types of patents available in Australia, the innovation patent and the standard patent. This article sets out what you need to know about getting an innovation patent and when you should opt for an innovation patent over a standard patent.

However, please note that 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. 

Patentability Requirements

You can apply for an innovation patent if your invention involves a new, useful and innovative step. Therefore, you can obtain an innovation patent for inventions where you cannot demonstrate an inventive step. Conversely, an inventive step is a key requirement for a standard patent. The threshold for getting enforceable protection for your invention is much less demanding for an innovation patent in comparison to the process for applying for a standard patent. Because of this lower threshold, however, the innovation patent only lasts for an eight year term. The standard patent lasts for 20 years.

To obtain enforceable protection for an innovation patent, the subject matter of the patent application must:

  • be an invention;
  • be supported in the patent application (essentially, you must demonstrate to the Patent Office that you are “in possession of the invention”; i.e. that you made it and it works); 
  • have an innovative step (this means that there is something different about the invention that was not known before. This difference must go directly to the way that the invention works); 
  • be “a manner of manufacture (i.e. the invention must have a true, tangible use and be of economic value. This requirement general excludes business methods from patentability and is particularly relevant for software inventions in modern times. Essentially, a software invention will not be patentable if the invention is merely a business method where the method is instructing a computer to do something it is designed to do);  
  • be new (i.e. you must not have disclosed your invention publicly in any form and it must not be the same as any other invention in the public domain); and
  • not have been secretly used.

What You Need to File an Innovation Patent Application

In your application, you will need to include:

  • a title;
  • a description;
  • up to five claims (if seeking certification);
  • drawings (if applicable); and
  • an abstract.

If you already have filed a provisional patent application in Australia, you will need to lodge an innovation patent application within 12 months of the provisional patent application filing date. This way you can benefit from the priority date of the provisional patent application.

Grant of Your Innovation Patent

So long as the innovation patent application meets various basic formal requirements, you will be automatically granted your innovation patent within a month. However, the innovation patent application will not be examined against the requirements of the innovation patent before the grant. Because of this, this grant is often considered a “soft” grant. A granted innovation patent is not enforceable. If you want the patent to be enforceable, you will need to request certification.

Making the Innovation Patent Enforceable

Unfortunately, the mere grant of an innovation patent does not give you a legally enforceable right to the patent. For the innovation patent to be legally enforceable, IP Australia must examine the patent to ensure it meets the patentability requirements and certify it.

IP Australia will notify you of an outcome of examination and either: 

  • certify your innovation patent; or 
  • issue an examination report with objections that you will need to overcome.  

You will have a right of reply to the examination report and will be able to address the objections by arguments or amending the claims. Once you have overcome all of the objections within the required six month timeframe, IP Australia may certify the innovation patent.

Unlike standard patents, where IP Australia must examine the patent application eventually, requesting the examination of an innovation patent is completely optional.  

Who Can Request Examination?

You can request the optional examination of your innovation patent at any time during the eight year term. If you decide to do so, you will need to pay the fee to examine the patent.

Alternatively, third parties may also request the examination of an innovation patent. For example, one of your competitors may wish to do so.

What Happens After Certification?

IP Australia will certify your innovation patent if it meets all the patentability requirements of the innovation patent. Certification of the innovation patent means that: 

  • the patent is legally enforceable; and 
  • you may use your exclusive rights to take action against those who infringe your patent rights. 

Timeline

You will usually obtain the grant within one month of applying for the patent. If you request examination, the process will usually take six months. Once this step is complete, an innovation patent can protect you up to eight years so long as you pay the annual renewal fees.

Key Takeaways

While the threshold for obtaining an innovation patent is lower, and the application process less stringent, you must meet certain requirements if you want to use an innovation patent to enforce your patent rights. Therefore, you should get assistance from an intellectual property professional who can help you prepare an application that reflects your invention accurately and meets the requirements under Patent law. If you need help with obtaining a patent, contact LegalVision’s patent lawyers on 1300 544 755 or fill out the form on this page.

Frequently Asked Questions

What is the difference between a standard patent and an innovation patent?

The threshold for getting enforceable protection for your invention is much less demanding for an innovation patent in comparison to the process for applying for a standard patent. Whereas an inventive step is a key requirement for a standard patent, you can obtain an innovation patent for inventions where you cannot demonstrate an inventive step.

How long does it take to certify an innovation patent?

The examination process to certify an innovation patent will usually take six months. Once this step is complete, however, an innovation patent can protect you up to eight years.

How long do patents last?

A standard patent lasts for 20 years. However, the innovation patent only lasts for an eight year term.

Who can request innovation patent examination?

As the owner of an innovation patent, you can request examination. However, third parties such as competitors can also do so.

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