In a wide-reaching consultation paper, IP Australia has presented the Australian Government with a list of potential legislative reform proposals, and some preliminary views on how IP regulatory compliance may be streamlined and simplified, all with a view to improving productivity growth. The legislative reforms are intended to be relatively simple, uncontroversial, and able to be progressed in the short term.
A very short consultation period of 4 weeks is provided. Written submissions regarding the proposed legislative reforms and the policy issues, for some of which “preferred solutions are presented”, are invited by 2 April 2026 to https://consultation.ipaustralia.gov.au/.
Broader policy concerns that have been aired by the government such as the declining level of Australian investment in R&D, the ongoing desire for alignment of Australia’s patent system with those of other leading trading partners, the pressure on trade relations and faster and cheaper access to medicines, are also evident in the proposals.
This article focuses on the procedurally most impactful of the proposed patent reforms. Discussion of the proposed trade marks reforms by colleagues Florence Lundon-Moore and Emma Mitchell can be found here.
Introducing a shorter period for response to examination reports
Currently, a so-called “time to acceptance” system for examination responses provides applicants a fixed 12-month window within which to achieve allowance of a patent application once an examination report issues. This framework is described as “outdated”, “creating clutter, delays and uncertainty” both for competitors and other applicants further back in the queue.
Potentially bringing Australia more into line with most other patent systems including that in New Zealand, it is proposed that Applicants would need to respond within shorter set timeframes (e.g. 2 months). More controversially, it is proposed that Applicants would have a limit on the number of formal responses to an examination report before so-called “rejection procedures” commence (e.g. 3 responses). The proposed response timeframe is shorter than is available to Applicants in most other patent systems, which often also include an extension period. While shortening the response period to less than 12 months is probably uncontroversial, Applicants still need the opportunity to properly consider solutions in Australia that meet commercial needs and/or for integration and alignment with examination outcomes in other countries.
The availability of a limited extension period and exactly what constitutes a “rejection procedure” will be key to the palatability of this reform.
Getting a patent faster
In one of the policy issues raised, it is asserted that the Australian patent system provides “extensive mechanisms for applicants to prolong pendency of a patent application both before and after examination”. It highlights that this creates uncertainty for competitors as to their freedom to develop new products and suggests that technical development overall may be stymied. It is worthwhile observing here that delays on the part of the Patent Office majorly contribute to delayed patent grant right now. Even after requesting examination which is often directed only 12-18 months after a patent is filed, in some technologies, it can be up to 20 months before an examination report issues.
It is suggested that, in addition to third parties already being able to request examination of a patent, they would also be able to “indicate their interest in a particular patent application being resolved quickly”. In response to this indication, a patent applicant would not be permitted to exercise the “flexibilities that permit the applicant to delay for commercial or tactical reasons (as opposed to genuinely addressing the issues raised in examination)”. The concern raised appears to be focused on the current availability of divisional applications to extend the examination period. One “possible solution” is presented: Applicants, in circumstances where a third party drives examination, could be prevented from filing a divisional application other than to overcome a unity objection.
Adopting this “possible solution” would certainly put Australia out of step with most of its major trading partners, and it’s expect this approach would be controversial.
Abbreviating extension of time processes
One of the relatively most lenient aspects of Australian patent practice is the ability to get extensions of time for an “error or omission” in the procedural handling of a patent or application. The administrative process of getting the extension of time however, can feel complex and protracted, especially where the extension period sought is only brief, and the error or omission is plain. The paper recognises this.
The principle behind the complexity and rigour of the process is fair. Once a patent or application has lapsed due to the failure of the Applicant or Patentee to correctly follow procedure, third parties can and should have the opportunity to adopt the protected technology without risk. But the practical reality is that this can take time, money and effort. Acknowledging this, the paper suggests that, on the one hand, short extensions of time should be permitted with less red tape, but longer extensions of time should not be permitted beyond a certain timeframe after the deadline has passed.
Restricting the period of an extension of time available may result in a minority of Applicants or Patentees losing rights they may previously been able to retrieve, and it will place additional pressure on the humans who work in the system. An alternative to time limiting an extension request may be to raise the bar on their allowability after a certain period. Dispensing with the complexity of handling request for only a short period certainly makes sense.
Action if these proposals may affect you
While legislative reform can often involve exposure periods for review of draft legislation, in this case, there is a possibility that IP Australia is seeking to avoid the need to amend the Patents Act 1990, instead focusing on change to the Patents Regulations 1991 which do not need parliamentary review. A majority of the paper is directed at 13 proposals where a change pathway has already been identified. The one-month consultation window may be the only opportunity to change the thinking set out in this paper. Griffith Hacks attorneys are experts in the Australian IP regulatory environment and welcome the opportunity to discuss these possible changes and how they might impact you. We can also lodge submissions on behalf of parties that wish to remain anonymous.
We will keep you updated as clarity around the proposed reforms and policy issue develops.
