With innovation patents set to be abolished in Australia, now would be a good time for innovators in all fields to consider whether innovation patents might be a useful part of their patent portfolios.

Key takeouts

Innovation patents offer strategic advantages over standard patents in a robust patent portfolio.

Legislative changes will phase out Australia's innovation patent system.

From 26 August 2021, applicants will no longer be able to validly file a new application for an innovation patent.

Innovation patents are part of Australia's second-tier patent system, and are used to protect technologies which are 'innovative' but not necessarily 'inventive'. In contrast to standard patents, which provide a 20 year term for inventions that possess an inventive step, innovation patents offer an eight year term for technologies that meet the lower threshold of innovative step. Innovation patents have therefore been widely used to protect incremental or workshop improvements and technologies with a short market life.

On 26 February 2020, the Intellectual Property Laws Amendments (Productivity Commission Response Part 2 and Other Measures) Bill 2019 received Royal Assent, bringing with it an end to Australia's second-tier patent system. From 26 August 2021, applicants will no longer be able to validly file a new application for an innovation patent. Standard patent applications that were filed on or before 25 August 2021 will still be convertible to innovation patent applications or have divisional innovation patent applications filed from them, but those options will only be available until 26 August 2029, by which time all innovation patents will have expired.

Innovation patents offer several advantages over standard patents. They can be simpler to prosecute and more challenging to revoke. Now would be a good time for innovators in all fields to consider whether innovation patents might be a useful part of their patent portfolios.