The innovation patent was a result of patent reform in 2001 to the Patents Act 1990 (Cth), whereby the old ‘petty patent’ was replaced with the new ‘innovation patent’. The innovation patent provides a more straightforward path for entrepreneurs to gain protection for incremental innovation when compared with the old petty patent scheme. The innovation patent was primarily aimed at providing protection for ideas that either had a short commercial life or failed to satisfy the inventive step requirements as are required for the grant of a standard patent.
Australia is largely unique in offering such a second-tier patent system without a threshold for inventive step. Only a relatively small number of other countries offer a second-tier patent system with notable examples being Germany, France, Japan and China.
With the release of the Australian Government’s response to the Productivity Commission, Intellectual Property Arrangement, Inquiry Report (the Report) in December 2016, the Government has agreed to a variety of reforms including the abolishment of the innovation patent from Australian intellectual property protection options. .
With the upcoming removal of the innovation patent, now is an excellent time to make use of what is a useful form of patent protection for those ideas for which standard patent protection may be difficult to achieve.
The two main advantages of filing an innovation patent while the opportunity is available are:
- An innovation patent only requires one claim to satisfy the innovative step threshold which is lower than that of the inventive step threshold as is required for a standard patent.
- From an enforcement viewpoint, innovation patents are harder to invalidate as they only require an innovative step. Thus, once certified, they offer more robust protection against invalidation than a standard patent offers, while at the same time offering the same level of enforceability as a standard patent.
The professional team at Baxter IP have significant experience in preparing and filing innovation patents and have helped many of our clients tap into this valuable form of IP protection. We are happy to discuss your needs and advise on whether the innovation patent is a suitable form of protection for your ideas.