The demise of the innovation patent confirmed

The demise of the innovation patent has been confirmed and a date has been set.

Described by IP Australia as a ‘phase out’, innovation patent applications can still be filed but must benefit from an Australian non-provisional filing date (e.g. international filing date) no later than 25 August 2021; e.g. divisional patent applications for innovation patents can be filed after 25 August 2021. The last innovation patents will expire 25 August 2029.

Whilst nothing changes until 25 August 2021, forward planning is recommended. Ensuring that a suitable non-provisional filing is made by 25 August 2021 will preserve the option of utilising the innovation patent system to obtain rights immune to lack of inventive step attack.

The innovation patent is Australia’s utility model. Innovation patents have long been a prominent feature of the Australian patent landscape. Now that they are being phased out, we wait to see how long it is before an alternative low-cost short-term patent is suggested. In the meantime this will not be the death of local innovation. Nor will it be the end of effective protection for local innovators.

Local innovators are left with the standard patent and its inventive step requirement and compulsory examination. An inventive step is not insurmountable by local innovators. Rather it’s a low bar requiring something more than obviousness. Compulsory examination entails costs but usually occurs years after filing by when applicants should have a better idea as to whether ongoing investment is warranted.

Authored by

Ben Mott

Mechanical Engineer & Patent Attorney