As of 25 August 2021 the innovation patent system has been phased out. Complete applications, including PCT applications, filed on or before 25 August 2021 may still form the basis of a divisional innovation patent application or conversion to a an innovation patent application, although it should be noted that all innovation atents are set to expire by 25 August 2029.
Innovation Patents were made available to assist Australia inventors and companies to file patents for inventions that while novel and new did not necessarily meet the inventive threshold required for standard patents.
Providing yearly renewal fees are paid each year from the second year after filing, they can last for up to 8 years.
An innovation patent first undergoes a formality check and providing the application has been formatted and presented as required by the regulation and only includes up to 5 claims, it is usually granted shortly after filing as there is no automatic examination substantive matters such as Patentable subject matter, novelty and innovative step before it is granted.
Unlike the Standard Complete Patent, the innovation patent requires only an innovative step over the existing technology that is generally considered a lower threshold than an inventive step.
As stated by IP Australia “An innovative step exists when the invention is different from what is known before and the difference makes a substantial contribution to the working of the invention.”.
The Australian Federal Court have heard a number of cases involving innovation patents and they can be very strategically powerful applications, which provide for the same remedies as standard patent applications.