Late last year the Productivity Commission released a recommendation to the government to abolish the Innovation patent. Innovation patents were introduced into Australia in 2002 to replace the Petty Patent, which was then our second tier patent system. Rather uniquely the Innovation patent, which has an eight year term, does not have an inventive step requirement and there has been case law that explicitly states that valid innovation patents can be obvious.
Initially the Innovation patent was used infrequently by small Australian businesses and individuals but over more recent years it has become a tool for large companies that are seeking to enforce their patents. This is because innovation patents can be filed as divisional patents and progressed to certification quickly, at which point they become enforceable with the same relief available as for standard patents.
The Australian Government had seemed to have accepted the Productivity Commission’s recommendation to abolish the Innovation patent. Surprisingly though, the Bill to implement the Productivity Commissions recommendations that was tabled in Parliament on 29 March 2018, makes no mention of abolishing the Innovation patent.
Although there may be some problems with Innovation patents, it seems to us that abolishing it would be akin to throwing the baby out with the bathwater. We have seen that the Innovation patent is a useful tool for our local clients and hopefully continued pressure on the government will result in it being retained, although perhaps in a modified form.