Pursuant to Schedule 1, Part 2 of the Intellectual Property Laws Amendment (Productivity Commission Response Part 2 and Other Measures) Act 2020, Innovation Patents will no longer be accepted for filing by IP Australia from 26 August 2021. The last day for filing an Innovation Patent will be 25 August 2021 (AEST).
Current Innovation Patent holders are not affected in that Innovation Patents filed by 25 August 2021 (AEST) continue until they expire.
Divisional Innovation Patents may be filed after 25 August 2021, if the parent application for that divisional application was filed by 25 August 2021 (AEST).
Conversions of a Standard Patent application to an Innovation Patent application can still occur after 25 August 2021, as long as the relevant Standard Patent application was filed by 25 August 2021 (AEST).
Instead of Innovation Patents, which have been perceived as a benefit for Australian small and medium enterprises (SMEs), SMEs will now receive access to an SME case management service, an SME fast track service, an SME outreach program and an online portal according to IP Australia.
Innovation Patents differ to Standard Patents in that with an Innovation Patent, an invention need not have the standard of an inventive step required for a valid Standard Patent, but rather an Innovation Patent need only have the standard of an innovative step, which has been regarded as a lower inventive threshold than is the case for an inventive step.
An invention is in general terms under section 7(4) of the Patents Act 1990 (Cth) (Patents Act) to be taken to involve an innovative step when compared with the prior art base, unless the invention would, to a person skilled in the relevant art, in the light of the common general knowledge as it existed before the priority date of the relevant claim, only vary from the kinds of information set out in sections 7(5) and (6) of the Patents Act in ways that make no substantial contribution to the working of the invention.
Sections 7(5) and (6) provide, in general terms, that for the purposes of section 7(4) above, the information is of the following kinds:
(a) prior art information made publicly available in single document or through doing a single act;
(b) prior art information made publicly available in 2 or more related documents, or through doing 2 or more related acts if the relationship between the documents or acts is such that a person skilled in the relevant art would treat them as a single source of that information.
Each kind of information referred to above in (a) and (b) must be considered separately.
If you wish to protect any of your innovations, please contact our firm as soon as possible to discuss whether your innovation could be protected by an Innovation Patent.
This article was written by Ashley Holland, Partner.