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is a patent? The
Innovation Patent
 | The Innovation Patent |
The following information will provide you with a basic overview of the Innovation Patent.
Important:
An innovation patent doesn't allow you to legally stop others from copying your innovation unless you have your innovation patent examined. Examination of an innovation patent will only occur if requested by the patentee, a third party or the commissioner of patents. An innovation patent is only legally enforceable and certified if it has been examined by IP Australia and has met the requirements of the Patents Act.
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What is the innovation patent?
The innovation patent is a protection option specifically designed to protect inventions that do not meet the inventive threshold required for standard patents. Introduced in 2001 to stimulate innovation among small to medium business and local industry, the innovation patent is a relatively fast way to obtain protection for your new device, substance, method or process.
The owner of any new and useful invention that involves an innovative
step can apply for an innovation patent.
What is an innovative step?
Innovation patents are intended to provide intellectual property rights for
those incremental and lower level inventions that would not be sufficiently
inventive to qualify for a standard patent. This is due to the inventive threshold
being lowered compared to a standard patent, that is, the innovation patent
requires an innovative step rather than an inventive step.
Why apply for an Innovation Patent?
The innovation patent can be a useful tool in supporting the first to market place advantage.
If you are considering taking the advantages from being the first to the market place with a new product, an innovation patent re-enforces this advantage as it's usually granted within a month.
Also the innovation patent allows the innovator to protect each stage of development long before the research project is finished, therefore reducing some of the financial and commercial risks.
If you want protection for an invention with a short market life that might be superseded by newer innovations such as computer software, an innovation patent is also definitely worth considering.
Should you subsequently need to stop others from entering the market with copies of your product, you can request for the innovation patent to be certified by IP Australia so that you can legally prevent them from doing so.
Certification is usually quicker to obtain than the longer process involved in obtaining the grant for a standard patent. So this strategy is suited to your needs where time is of the essence.
How do I get an Innovation Patent?
You can apply for an innovation patent directly through IP Australia either online or by mail, or you can use the services of a patent attorney.
Your application will be subjected to a formalities check, which involves checking basic details such as legibility, applicant details etc. as well as making sure that it is not for a plant or animal, a biological process for their generation, or a human being. If your application passes this check, you will receive your notification of grant usually within a month.
If your application doesn't pass the formalities check, a staff member from IP Australia will contact you to discuss what changes will need to be made for the application to be considered for grant.
What are the benefits of the innovation patent?
- As indicated, an innovation patent is useful for gaining quick protection
and, unlike a standard patent, you only need to pay to have it examined when
you need to stop others from copying your invention.
- An innovation patent allows you to gain protection for an invention which
has a lower inventive threshold than required for a standard patent. However,
if examined and certified, the innovation patent offers the same level of
protection in preventing others from copying your invention as a standard
patent.
- Protection of your intellectual property is the first step to commercialising
your idea.
- The innovation patent reduces some of the financial and commercial risks
involved in the research and development of a new invention. Also it allows
the innovator to protect each stage of development.
- Ultimately, the innovation patent is a fast, cost effective and easy to
obtain protection option. An innovation patent is generally granted within
one month unlike a standard patent that can take up to four years.
- It only takes minutes to apply! You can apply online for
an innovation patent and if your application passes the formalities check,
you will receive your notification of grant usually within a month. Click
here to apply online.
What are the limitations of the innovation patent?
- The innovation patent has a shorter protection term than a standard patent - 8 years as opposed to 20.
- As the innovation patent is granted without examination, IP Australia has not made any checks that the patent is valid. This may make the patent more difficult to sell or license until the patent has been examined and certified. Also you are unable to go to court to enforce the innovation patent until it has been examined and certified.
- An application for an innovation patent should not relate to plants or animals, biological processes for their generation, or humans.
- An innovation patent can only be applied for in Australia whereas you can apply separately in other countries for standard patents. Thus an innovation patent is not suitable to protect your innovations in export markets.
Examination and Certification
Innovation patents are not automatically examined. To fully enforce your rights and take infringers to court your patent must be certified following an examination. To request an examination, you must contact IP Australia or your patent attorney, and fill out the appropriate form and pay the required fee. An examiner will then check that your patent meets all relevant requirements of the Patents Act.
You will then receive one of two possible replies to your request:
- A notice that your patent has been successfully certified,
in which case your rights are then fully enforceable, and your invention is
republished as Certified in the Australian Official Journal of Patents.
- If you receive an adverse report, it will give reasons
why your application, in its present form, does not meet the requirements
of the Patents Act. However, you will have an opportunity to resolve the identified
problems by amending your specification or claims.
It is important to note that if you are unable to overcome the objections raised by the examiner during the examination period of 6 months the innovation patent will cease.
Third parties may also request examination of an innovation patent if they believe the patent is not valid. They pay half of the examination fee, and then you must pay the balance of this fee, because if your patent is certified, you stand to benefit from this action. If a third party requests examination and you do not pay the balance, the patent will cease.
If multiple requests for examination are made to IP Australia by third parties, there will still only be one examination and you will be responsible for the balance of one examination fee.
Enforcing your innovation patent
If you believe your innovation patent is being infringed upon, for example someone is copying your invention, you will need to have it examined by IP Australia. If it meets the requirements of The Patents Act then the innovation patent is certified and legally enforceable, meaning you can take legal action against the competing party. However if it is examined and found invalid, your patent will cease and you will not be able to take legal action against the party.
It is the owner's responsibility to monitor the market for possible infringements to their innovation patent and to seek appropriate legal advice for enforcing it. Please note that IP Australia only grants the right for an innovation patent and does not enforce it.
Can an innovation patent be converted to a standard patent?
You are able to change an innovation patent to a standard patent in the period before it is granted. The period will, however, be short as innovation patents will be granted after a brief formalities check, which is usually within one month.
Case Studies
Please read the case studies below, they may help you better relate to the processes involved in securing an innovation patent.
Stubbyglove case study
This case study is a great Australian story, it tells of three mates who dared to make their idea a reality and were smart enough to protect it with an innovation patent.
To date they have sold over 100,000 Stubbygloves.
To view the case study online please click
here or to view a PDF version please click below.
 Stubbyglove case study
Boardsling case study
Nick Kent designed a surfboard carrying device to make it easier to carry his
long board to the beach.
To view the case study online please click here or to view a PDF version please click below
Boardsling case study
Apply for an innovation patent
To apply online for an innovation patent please click
here, if you have any questions regarding the application process please
contact our Customer Service Centre on 1300 651 010.
Comparison chart of innovation patent vs standard patent
| |
Innovation Patent |
Standard Patent |
| To apply for a patent your invention must |
Be new, useful and involve an innovative step |
Be new, useful and involve an inventive step |
| Application should include |
A specification including title, description, up to 5 claims, drawings (if applicable) and an abstract, and forms |
A specification including title, description, no limit to the number of claims, drawings and an abstract, and forms |
| Examination |
After grant but only if requested by the applicant, a third party or the Commissioner of Patents, and a fee is paid. |
It is compulsory for an applicant to request examination, and pay a fee |
| Acceptance |
After passing formalities check |
After passing examination |
| Grant/Sealing |
Granted after acceptance |
After acceptance and opposition period |
| Certification |
After passing examination |
N/A |
| Enforcement |
After Certification |
After Sealing |
| Filing of Opposition |
At grant and again at certification |
18 months from priority date and again after acceptance |
| Fees |
Click here |
Click here |
| Time from filing to grant |
Approx. 1 month (Note - this does not include examination) |
Up to 4 years |
| Protection period |
8 years max, if annual fees paid |
20 years max, if annual fees paid (up to 25 for pharmaceuticals) |
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