Abolishment of Australian Innovation Patents

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This article was first published in FMCG magazine. 

Intellectual property protection has always been important to the food/beverage and packaging sector. Patents and registered designs are tools that are frequently used to protect new technologies in this space. But not all patents are created equal… and things are about to change.

Currently, Australia offers a form of IP that is not available in New Zealand – the innovation patent. This option provides a cost-effective way to obtain patent protection, and enables technological advancements to be protected relatively quickly and easily compared to standard patents. However, the ability to obtain an Australian innovation patent is about to be slowly phased out, so savvy inventors should take note of how this will affect them.

What is an innovation patent?

In effect, an innovation patent is available for any invention that is new and innovative at the time of application. The innovative step requirement is a lower threshold than the inventive step requirement of standard patents, which means that an innovation patent may often be used to protect a technological advancement that would not meet the requirements of a standard patent.  In other words, an innovation patent can be used to protect ‘lower-level’ technological advancements. Innovation patents provide their owners with full patent rights, but only for a maximum term of eight years, compared to the maximum term of 20 years for standard patents.

What are the issues with innovation patents?

Because the innovative step threshold is easily satisfied, innovation patents are difficult to successfully attack and so have become an effective tool for enforcing patent rights – even where those rights might appear to be somewhat dubious.

Due to concerns raised about the effect of innovation patents on stifling competition, its vulnerability to abuse, and the low take-up by Australian SME’s (the target audience for which the system was designed to assist), the Australian Government has decided to phase out the innovation patent system from 26 August 2021.

How does this affect your intellectual property protection strategy for Australia?

If you have developed new technology that you would like to protect in Australia and you have concerns about the level of inventiveness of that technology, you should consider filing an innovation patent application or a standard complete patent application for the technology in Australia before the cut-off date of 26 August.

Similarly, if you have a pending Australian provisional patent application and you have concerns about the inventiveness of that application, or if you are concerned that someone may attack your application or may infringe your patent rights, we suggest that you complete the provisional application before the cut-off date. By filing a complete application before the cut-off date, you will preserve the option to divide or convert the application to an innovation patent application at a later time.

Keeping your options open to obtain an innovation patent can be a complicated process, so if you think these legislative changes could impact your business, get in touch for more information.