Those with a keen interest in the fate of Australia's innovation patent will recall its last minute reprieve, when legislation abolishing the innovation patent was removed from the Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Act 2018 (Cth).

That legislation was, on 25 July 2019, reintroduced to Parliament as the Intellectual Property Laws Amendment (Productivity Commission Response Part 2 and Other Measures) Bill 2019 (Bill). The Bill implements Part 2 of the Government’s response to the Productivity Commission (PC) Inquiry into Australia’s IP arrangements including abolishing the innovation patent system.

The PC recommended that the innovation patent system be abolished as it found that it is unlikely to provide net benefits to the Australian community or to small and medium sized enterprises. The PC also found that the innovation patent system imposes significant costs on third parties and the broader Australian community.

However, those hoping for a quick disposal of the innovation patent system will be disappointed. Unsurprisingly, the Bill only affects the ability to obtain innovation patents going forward, and will have no effect on existing innovation patents. Further, the sections of the Bill dealing with innovation patents will only come into effect 12 months after the Bill receives Royal Assent (D-Day).

At this early stage it is not possible to predict when the Bill will receive Royal Assent or whether it will even pass both houses of Parliament. The Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Bill 2018 received Royal Assent five months after it was introduced. If the same timeframe applies to the Bill, it is likely that it will still be possible to file innovation patents until the end of 2020.

We will be sitting on the edge of our seats as we watch the passage of the Bill through Parliament. We expect a significant increase in the number of innovation patents filed, especially in the months leading up to D-Day, as IP rights holders (especially those involved in litigation) look to create innovation patents to protect their IP assets and assert against competitors, before they become extinct.