An innovation patent is a government (IP Australia) granted right which gives the inventor (or owner of the invention) an exclusive right to commercialise their invention in Australia. It provides the patentee a monopoly on that invention, excluding all others, for an eight-year term. This is in contrast to a standard patent, which provides a twenty-year term of protection and requires a higher level of inventiveness. This article will examine the key differences between innovation patents and standard patents and recent changes to the innovation patent system.
An innovation patent must meet two key criteria at the date of the filing date of the patent (known as the ‘priority date’) to qualify for patent protection:
These two key patentability criteria are judged against what is known as the ‘prior art’. The prior art comprises any publicly available information that existed before the priority date. It typically consists of published documents and, in some cases, verbal disclosures, commercial use of the invention, promotion, offering for sale, or sale of the invention itself.
In addition to the two key criteria above, the other criteria also required for innovation patent protection include:
NOTE: The novelty of your invention (and therefore the patentability of your invention) can be lost even by disclosing it to your customers, manufacturers, investors and other commercial partners prior to the priority date unless obligations of confidentiality protect that disclosure. It is very important that, in order to protect the patentability of your invention, you ensure appropriate confidentiality agreements or non-disclosure agreements are in place with these third parties before disclosing your invention. See our article on ‘What is a confidentiality agreement and when do I need one’ for more information.
Introduced in 2001, the innovation patent was a second tier of protection available to prospective patentees. This system of protection was aimed at incentivising innovation in small and medium enterprises in Australia by being quicker (that is, quicker to achieve grant) and more cost-effective process when compared to the standard patent system.
The innovation patent system has recently been phased out, starting on 26 August 2021. However, innovation patents in certain circumstances continue to remain in force or can still be subsequently applied for:
Innovation patent applications first undergo a formalities examination and are subsequently registered. However, a registered innovation patent cannot be enforced (that is, used to threaten or commence patent infringement proceedings against an infringer) until it is certified. This requires the registered innovation patent to undergo substantive examination. Certification for existing innovation patents or qualifying newly filed innovation can still be requested at any time by the patentee during its term and is not affected by the 26 August 2021 phase out date.
Maintaining an existing innovation patent or filing for a qualifying new innovation patent still remains a very important intellectual property asset for a business. They are assets that form part of the valuation of a business. They are also rights that can enforced against infringers, in turn protecting market share and profits.
Notwithstanding that the innovation patent system has now been phased out in Australia, there remain certain circumstances where new innovation patent applications can still be filed. You should seek the advice of an intellectual property lawyer and patent attorney to understand your options regarding innovation patents and how they might be able to help you.
Actuate IP has a team of intellectual property experts who can assist you with Learning How Patents Work, Patent Searches, Drafting, Filing & Prosectution. If you require assistance, you can contact our team on 1300 851 138 or info@actuateip.com.au and our friendly staff will make sure you are directed to the best person to assist you with your matter. We have patent lawyers in Brisbane, Sydney and Melbourne.
Introduced in 2001, the innovation patent was a second tier of protection available with a quicker (that is, quicker to achieve grant) and more cost-effective process when compared to the standard patent system. Unlike standard patents, an innovation patent does not need to be non-obvious. This is the key difference that lowers the level of inventiveness required for an innovation patent. However, the term of protection is also shorter for innovation patents (eight years) than standard patents (twenty years).
The innovation patent system has recently been phased out, starting on 26 August 2021. However, innovation patents, in certain circumstances, continue to remain in force or can still be subsequently applied for.