Reading time: 5 minutes

Note from August 25 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.

Unlike most other jurisdictions, the Australian patent system allows for two different types of patents – standard patents and innovation patents. An innovation patent application is an application for an innovation patent.

As the name suggests, innovation patents are designed to protect new inventions that may not satisfy the ‘inventive step’ requirements of a standard patent. So, innovation patents could be considered to protect ‘innovations’ rather than true ‘inventions’. An innovation is considered less groundbreaking than a new invention, and as such, the requirements for a valid and enforceable innovation patent are lower. The downside of this is that innovation patents receive a weaker form of protection.

What Does An Innovative Patent Cover?

As with standard patents, innovation patents can protect new devices, methods, processes, or substances.

Innovation Patent v Standard Patent

The fundamental difference between innovation patents and standard patents is in the type of invention they seek to protect. Innovation patents are typically used to protect inventions that have a short market life (such as innovative software developments). Innovation patent protection lasts up to 8 years, as opposed to 20 years for a standard patent.

Both standard and innovation patents require that the protected invention be new and useful, as well as falling within ‘patentable subject matter’. Patentable subject matter includes things such as biological inventions, computer-related or implemented inventions and business methods, in addition to traditional types such as physical devices.

Standard patents, however, require that the protected invention shows an ‘inventive step’, meaning that the invention is not obvious to someone ‘skilled in the art’ of the relevant field or industry. Innovation patents, by contrast, require only that the invention is different from what is currently known, and that difference makes a significant impact to the working of the invention.

The following table summarises the key differences between innovation and standard patents:

  Innovation Patent Standard Patent
Types of Inventions Devices, methods, substances, or processes. Devices, methods, substances, or processes.
Patentability Requirement Innovative step Inventive step
Length of Protection 8 years 20 years
Time Until Grant 1 Month 6 months minimum, up to several years.
Examined? Formalities only, substantive examination upon request. Yes
Enforceable? After certification After grant.

How Long Does It Take To Apply?

While the actual preparation and submission of an application will depend on the nature, complexity and development stage of the invention (from a few days, up to several weeks or months), once an application is submitted there is significant difference in processing time between an innovation patent application and a standard application.

As innovation patents undergo only formalities examination, they are typically granted within a month of submitting the application. Note that at this time, the application is published, and the full details of the invention are available for public inspection. Standard patent applications must undergo full examination, and this process takes a minimum six months, up to several years in some cases.

What Are The Costs?

Innovation patents are typically cheaper than standard patent applications, as the requirements and protection granted is lower. The official filing fees typically represent a small portion of the overall cost, as preparation of the application can take some time depending on the nature and complexity of the invention.

Enforcement

An innovation patent can only be enforced after it undergoes substantive examination and subsequent certification. This means that the costs associated with examination can be avoided until required to enforce the patent. Standard patents, by contrast, must undergo a substantive examination to be granted.

Filing Options

As with standard patents, it is possible to apply for a provisional patent application before submitting a full application. A provisional application provides the patent owner with a ‘priority date’ in respect of the invention, establishing when the invention was first made, and allowing the patent owner to describe the invention in more detail at a later date. A provisional application can also be used as a later basis for either an innovation patent or a standard complete patent application. A provisional application may be useful if there is a dispute over ownership of the invention, or if you need time to decide whether your invention is in fact worth your time, money and effort.

Key Takeaways

If you have developed an invention and are considering applying for patent protection, you should consider the market life of your invention and the contribution it makes. If it more likely to be characterised as an ‘innovation’ than an invention, then an innovation patent may be an appropriate form of protection.

If you have any questions or need assistance determining the most appropriate form of protection, get in touch with our IP lawyers on 1300 544 755. 

Webinars

How Franchisors Can Avoid Misleading and Deceptive Conduct

Wednesday 18 May | 11:00 - 11:45am

Online
Ensure your franchise is not accused of misleading and deceptive conduct. Register for our free webinar today.
Register Now

New Kid on the Blockchain: Understanding the Proposed Laws for Crypto, NFT and Blockchain Projects

Wednesday 25 May | 10:00 - 10:45am

Online
If you operate in the crypto space, ensure you understand the Federal Government’s proposed licensing and regulation changes. Register today for our free webinar.
Register Now

How to Expand Your Business Into a Franchise

Thursday 26 May | 11:00 - 11:45am

Online
Drive rapid growth in your business by turning it into a franchise. To learn how, join our free webinar. Register today.
Register Now

Day in Court: What Happens When Your Business Goes to Court

Thursday 2 June | 11:00 - 11:45am

Online
If your business is going to court, then you need to understand the process. Our free webinar will explain.
Register Now

How to Manage a Construction Dispute

Thursday 9 June | 11:00 - 11:45am

Online
Protect your construction firm from disputes. To understand how, join our free webinar.
Register Now

Startup Financing: Venture Debt 101

Thursday 23 June | 11:00 - 11:45am

Online
Learn how venture debt can help take your startup to the next level. Register for our free webinar today.
Register Now

About LegalVision: LegalVision is a commercial law firm that provides businesses with affordable and ongoing legal assistance through our industry-first membership.

By becoming a member, you'll have an experienced legal team ready to answer your questions, draft and review your contracts, and resolve your disputes. All the legal assistance your business needs, for a low monthly fee.

Learn more about our membership

Need Legal Help? Submit an Enquiry

If you would like to get in touch with our team and learn more about how our membership can help your business, fill out the form below.

Our Awards

  • 2020 Innovation Award 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Award 2020 Employer of Choice Winner – Australasian Lawyer
  • 2020 Financial Times Award 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year Award 2021 Law Firm of the Year - Australasian Law Awards
  • 2019 Most Innovative Firm - Australasian Lawyer