A bill before Australian parliament is set to phase out the innovation patent system.

Innovation patents are a unique category, distinct from standard patents. The granting process is faster, the costs are less and there is some (albeit more limited) protection to the development.

Often medtechs use innovation patents to supplement a standard patent grant or only as insurance while applying for one.

These were brought in to protect technological developments which are incremental in nature. It replaced the so-called petty patent that was in effect between 1979 and 2000.

Corrs Chambers Westgarth lawyer Frances Wheelahan suggested clients should rush to obtain these tools while they were still available.



Dr Mary Wyburn from the University of Business School told Stockhead the system’s scrapping was because of perceptions it was essentially useless.

“There is a perception local small business enterprises are not making use of it; and even if they do, they are not getting any benefits,” she said.

“There are also claims the system is being abused by some foreign applicants, who are able to claim government subsidies in their country of origin when they obtain a ‘granted’ patent in Australia.

“Innovation patents are not recognised overseas and cannot be used as a basis for foreign patents and when they are disclosed via the innovation patent system, this exposes the invention to ‘overseas copycats’.”

Dr Wyburn said the move had been on the cards for a while. The government has been considering raising the invention standard as far back as 2012.

The Productivity Commission, meanwhile, formally recommended this in 2016 but the government is only now acting on the recommendation.

Dr Wyburn also pointed to a Federal court case in 2009 involving roadside marker posts (Dura-Post (Australia) Pty Ltd v Delnorth Pty Ltd [2009] FCAFC 81), which found the threshold was low.


‘An extreme and incorrect response’

The med-tech industry, however, does not agree that innovative patents should be scrapped.

Lorraine Chiroiu, CEO of AusBiotech — Australia’s peak biotechnology industry association, is one opponent. She told Stockhead the move was “an extreme and incorrect response” by the government.

“The IP system in Australia, and the protection it gives to companies working in the biotech and med-tech sectors is critical to the development of new technologies,” she said.

Chiroiu said the government should consider modification over the complete abolishment of the patents.

Her suggested changes included raising the innovation threshold, requiring examination prior to grant, and setting an examination deadline.