Last updated: 
5 March 2020

The Australian Government has begun the process of phasing out the innovation patent with the passing of legislative amendments. From February 2020, an 18-month phase-out period begins and during this time you can continue to file new innovation patents.

The last day you can file a new innovation patent will be 25 August 2021.

Existing innovation patents will continue in force until their expiry so no current right holders will be disadvantaged.

The Government remains committed to dedicated support services to help small and medium enterprises (SMEs) navigate the intellectual property (IP) system. Australian SMEs will receive further dedicated support, with an SME case management service, the SME fast track service, a dedicated outreach program and online portal, to be launched as the innovation patent is phased out over the next 18 months.

What does this mean for my existing innovation patent?

  • Existing innovation patents and innovation patents filed on or before 25 August 2021 (AEST) will continue in force until their expiry. This will ensure current rights holders are not disadvantaged.
  • You will still be able to file a divisional innovation patent application after 25 August 2021 (AEST), provided that the parent application for the divisional was filed on or before 25 August 2021.
  • You will still be able to convert a standard patent application to an innovation patent application provided the standard patent application was filed on or before 25 August 2021 (AEST).  
  • No extensions of time will be available for late filings of innovation patents.
  • You will not need to bring forward the certification of existing innovation patents. You can continue to request certification at a time of your choice.

Can I get a standard patent instead of an innovation patent?

You may be able to get a standard patent instead of an innovation patent for your invention, however, there are differences in the criteria for these types of patents to be aware of. We recommend that you seek professional assistance before applying for a patent. Check out our Engaging an Attorney Toolkit to assist you in this process.

One option to consider when deciding if a patent is the right choice for you is a provisional application. Provisional applications provide a priority date, which establishes the fact that you are the first person to file a new invention with us. While a provisional application doesn’t provide you with the protection of a full patent, it does give you up to 12 months to consider your options before deciding to proceed with a patent application.

Visit our types of patents webpage to learn more about options available to you. There are also a range of resources available on our website to assist you in navigating the patent process.

Why is the innovation patent being phased out?

The phase out of the innovation patent is part of the Government’s commitment to ensuring our IP system meets the needs of Australian SMEs. Over time the innovation patent has not achieved its intended objective. Economic evidence shows that the innovation patent system has a net cost of $11M per year to all Australian business, fails to incentivise research and development, and allows big business to block SMEs from innovating.

Innovation patents are used by large firms as a strategic tool to stifle competition

Big business can use innovation patents to create patent thickets. A patent thicket is where a firm files a series of innovation patents surrounding an SME’s product. These tactics suffocate an SME’s freedom to operate, making it harder for them to compete with big business. In 2017 big business and foreign applicants obtained almost 4 times the number of enforceable innovation patents than SMEs.

Low standards for innovation patents inhibit genuine innovation and competition

Low thresholds and unexamined innovation patents create uncertainty around where SMEs have freedom to operate. This is eroding confidence and investment in SME innovation.

Innovation patents put Australian innovators at risk in overseas markets

Obtaining protection through an innovation patent can backfire if a business wants to export. Innovation patents are not recognised overseas and can’t be used as a basis for foreign patents. Innovation patents disclose the SMEs’ inventions, exposing them to overseas copycats.

Support for small to medium enterprises (SMEs)

The phase-out of the innovation patent is part of the Government’s commitment to ensuring our IP system meets the needs of Australian SMEs. SMEs will receive further dedicated support, with an SME case management service, the SME fast track service, a dedicated outreach program and online portal, to be launched as the innovation patent is phased out over the next 18 months.  Check out the range of resources on our website to learn more about how you can protect your great ideas.

Any questions? Ask Alex, she is found on the bottom right hand corner of this page, or contact us.

Further information