Australian innovation patents

Phasing out

The innovation patent system is being phased out as of 25 August 2021. New innovation patents can be obtained only if they are linked back to an innovation patent application, an Australian standard patent application and/or an international patent application filed before then.

8 year protection for most new products and processes

Innovation patents last for up to 8 years from their filing date. An additional year of protection can be obtained by filing a provisional patent application prior to filing an application for an innovation patent.

The same rights as standard patents

Innovation patents provide the same coverage and rights as standard patents.

Filing allows you to go public

Once an effective patent application is filed, you can publish, make, use and sell (etc) the invention without affecting your patent rights.

An innovative step is required

Innovation patents are intended to cover ‘workshop improvements’. Inventiveness is not required. An innovation patent can validly cover an obvious combination of well-known features. To qualify for an innovation patent, the invention must be ‘novel’ and have an ‘innovative step’. ‘Novel’ means not publicly known when an initial patent application is filed, although a 12 month grace period may allow you to obtain valid patent protection if your invention is publicly known but was secret until recently.

The ‘innovative step’ threshold requires a variation over publicly known products and processes which ‘makes a substantial contribution to the working of the [product or process]’. This is a very low threshold.

‘Substantial’ simply means ‘real or of substance’.

By way of example, various definitions of the invention in three innovation patents relating to spring steel roadside posts (see Figure 2 and Figure 3) were found valid. The posts differed from earlier spring steel posts by the inclusion of:

  • a marker hole (e.g. item 135) useful as a depth gauge during installation and a gripping point during removal;
  • a barb (e.g. item 137) for anchoring the post into the ground;
  • a tapered end (e.g. item 132) to make it easier to drive into the ground;
  • lengthwise ribs to resist buckling; and
  • specific dimensions.

Any one of these variations was considered sufficiently innovative to qualify for protection.

Whilst innovation patents are available only in Australia, some other countries (including Germany, Japan and China) have similar patent systems referred to as ‘utility models’.