Australia is unusual, in that it currently has a two-tier patent system. But this will come to an end on 25 August 2021.

Australia’s ‘standard patent system’ will remain the same after August this year. Granted standard patents in Australia provide a 20 year monopoly to exploit an invention. However, in contrast to many jurisdictions, Australia currently has a second tier patent system; known as the ‘innovation patent system’. This is somewhat similar to the utility model patent system in China and Germany. Australia's innovation patent system will be phased out this year.

Innovation patents in Australia currently provide an eight year monopoly to exploit an invention. Importantly, innovation patents provide the same rights in Australia as a standard patent. Despite providing a relatively short patent term, innovation patents provide several significant advantages. This is particularly so for companies that operate in a litigious or quickly evolving technology field. For example, innovation patents can be ‘carved out’ of a standard patent to target a specific infringement and have a much lower threshold for patentability relative to standard patents. This can make innovation patents invaluable in patent infringement proceedings as they are relatively difficult to invalidate. Also, provided that certain requirements are satisfied, innovation patents and standard patents may co-exist for the same invention. This allows sophisticated companies to hold multiple patents for the same invention, which presents a strong barrier to market for competitors in Australia. Further, the process to obtain enforceable rights for an innovation patent are streamlined. As such, the innovation patent system provides a cost and time effective mechanism to quickly obtain enforceable patent rights in Australia.

If you want to keep the option open to file an innovation patent in Australia after 25 August 2021, you must act soon. It will not be possible to file an innovation patent in Australia after 25 August 2021 unless certain actions are taken by 25 August 2021. A standard patent application must be filed in Australia by 25 August 2021 to retain the option to file an innovation patent after 25 August 2021. Provided that a standard patent application is filed before this date and remains pending, it will be possible to file an innovation patent that is based on the standard patent application after 25 August 2021. The standard patent application may be a direct filing in Australia or may be a PCT designating Australia.

Contact our team of patent attorneys if you have any questions about the new change, or would like further guidance on how best to take advantage of Australia’s current innovation patent system.