The Australian Federal Government’s recently proposed legislation to phase out the innovation patent system. An innovation patent is similar to Utility Model protection that is provided in a limited number of other countries. Unlike Standard Patent protection, an Innovation Patent has been useful to protect innovations that may lack inventive step (are somewhat obvious), whilst still being novel.
The Federal Government introduced the Intellectual Property Laws Amendment (Productivity Commission Response Part 2 and Other Measures) Bill 2019, on 25 July 2019 to parliament. The Bill proposes a Commencement Date 367 days after the legislation receives Royal Assent.
- Innovation Patent applications filed before the Commencement Date will still be able to be certified and therefore can still be enforced after that date until it ceases. Currently, Innovation Patents are automatically granted after a brief formalities check, but are only enforceable if substantively examined and then certified.
- If the parent patent is filed before the commencement date, all previous options are still available after that date:
- A Standard Patent may be converted to an Innovation Patent.
- A Divisional Innovation Patent Application may be filed.
- If a Provisional or Basic Application (“Basic Application”) is filed before the Assent Date (367 days before the Commencement Date), the Applicant will still have the 12 month Convention period to file an innovation patent claiming priority from that Application, prior to the Commencement date.
- An Innovation Patent Application claiming priority from a Basic Application filed between the Assent and Commencement dates will need to be filed prior to the Commencement date to claim that priority. That is, an Innovation Patent Application filed on or after the Commencement Date will not be granted.
In the short term, the Innovation Patent System may still be used to protect low-tech innovations, or to quickly obtain enforceable patent protection in a dispute situation. Once the legislation receives Assent, the clock will countdown and any filings protecting low-tech innovations or requiring this form of protection will need to be lodged, at least before the Commencement Date.