innovation patent phase out

As you may have read in one of my earlier blog posts, phasing out of the Australian Innovation Patent has been on the cards for a very long time.

On 26 February 2020, this became reality. The Intellectual Property Laws Amendment Bill 2019 received Royal Assent. This means that the Bill became law. As such, we are now in an 18-month period to phase out the Australian Innovation Patent.

What does this mean?

  • Existing innovation patents will continue in force until their expiry;
  • 25 August 2021: last day to file a new Australian Innovation patent application;
  • From 26 August 2021, you can no longer file new Innovation patent applications;
  • You can still file divisional Innovation patent applications, as long as the parent application is filed on or before 25 August 2021;
  • Also, you can still convert a standard patent application into an Innovation patent application as long as the standard application is filed on or before 25 August 2021; and
  • Finally, 25 August 2029 is the expiry date of all Innovation patents.

The most important date here is 25 August 2021. This is the last day to file an Australian application to make use of the Innovation Patent System.

Recap: what is an Australian Innovation Patent

In Australia, there are currently two types of patents; a standard patent and an innovation patent:

Innovation PatentStandard Patent
Maximum lifetime: 8 yearsMaximum lifetime: 20 years
Lower threshold of inventiveness (requires innovative step)Higher threshold of inventiveness (requires inventive step)
Granted after formality examinationGranted after substantive examination
Enforceable after certificationEnforceable after grant

Filing an innovation patent has several advantages. For example, because an innovation patent is “granted” shortly after filing (without examination), patent owners can legitimately market their products as patented.

Also, because the innovation patent has lower inventiveness requirements, innovation patents form very strong rights that are difficult to invalidate. As such, they can usually be crafted broader than a standard patent.

More questions?

Please get in touch with one of our experienced patent attorneys here. We are happy to answer all your questions.

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