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Archived updates for Friday, August 18, 2006

Report on the Australian Innovation Patent


According to IP Australia's Final Report on Review of the Innovation Patent,
Although it is difficult to objectively measure whether low-level
innovation has been stimulated by the innovation patent, the higher use of the system than was the case for the petty patent suggests that it has to some degree. The innovation patent is predominantly being used by Australian individuals and SMEs for less-knowledge intensive innovations. The innovation patent system is also generally speedier and has lower fees than the standard patent system, although the cost difference is marginal when an agent is
employed.

Most of those who made submissions believed that "innovative step" was clearly a lower threshold than inventive step, and was a main reason for the reasonable level of use of the system. The latest opposition decisions by IP Australia support this view, however the level and effectiveness of innovative step can ultimately only be determined by the courts. Also, recent worldwide concerns over a possible proliferation of "trivial" patents creating barriers to innovation mean that the appropriateness of the innovation patent should be regularly reassessed.

Despite some concerns raised in submissions, the application and enforcement processes generally appear to be appropriate. At this stage there appears to be no reason to modify the eight year term, five claim limit or the subject matter covered. However, despite the clear intent of the innovation patent, there does appear to be a risk that a court would interpret the legislation to mean that the subject matter of an innovation patent would have to satisfy a threshold of inventiveness on the face of the specification that is higher than that of innovative step. This would undermine the system and significant modifications would be urgently required. It would be best to have the issue examined before such a situation eventuated.
The Australian "innovation patent" is a protection option, which is designed to protect inventions that are not sufficiently inventive to meet the inventive threshold required for standard patents. The innovation patent is designed to provide an incentive to small business to invest in innovation and it will provide a relatively cheap patent right that is quick and easy to obtain.

Innovation patents are available for most of the types of invention currently covered by standard patents, except human beings, plants and animals or biological processes for the generation of these.

The innovation patent has a shorter protection term than a standard patent - 8 years as opposed to 20.

You are unable to go to court to enforce the innovation patent until it has been examined and certified.

As the innovation patent is granted without substantive examination, IP Australia has not made any checks that the patent is valid. You are able to change an innovation patent to a standard patent in the period before it is granted. The period will, however, be short as innovation patents will be granted after a brief formalities check.
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