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The End of Innovation Patents in Australia

Australia’s second-tier patent, known as the “innovation patent”, is being phased out. With a few exceptions, the final date to file an application for an Australian innovation patent is 25 August 2021.

Innovation patents filed by 25 August 2021 will continue in force until their expiry. After 25 August 2021, innovation patent applications may only be filed where:

1. The innovation patent application is a divisional application from a patent application that was filed by 25 August 2021.

2. The innovation patent application is filed as a conversion from a standard patent application or a PCT application designating Australia having a filing date on or before 25 August 2021.

Therefore, provided an applicant has a pending standard application or a PCT application designating Australia (filed before 25 August 2021), an innovation patent application may still be filed after 25 August 2021.

Innovation patent applications do not undergo substantive examination prior to grant, and are usually granted within several months. They have a term of up to eight years from the filing date. Granted (but unexamined) innovation patents must be substantively examined before they can be enforced. Novelty, patentable subject matter, support and sufficiency standards are the same as for Australian standard patents, but the ‘inventive step’ that is required for standard patents is replaced with an ‘innovative step’ requirement – a significantly lower threshold.

The Australian Government decided to abolish the innovation patent system because it believed that the system has not achieved its purpose of meeting the needs of Australian small and medium sized enterprises. The Government considers that the innovation patent system has instead mostly been used strategically, or cynically, by large and sophisticated entities. In addition, the large proportion of unexamined innovation patents reduces certainty of freedom to commercialise for Australian businesses.

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