The death knell for the Australian innovation patent? – 20 August 2015
The Australian innovation patent is akin to utility models available elsewhere. They were introduced in 2001 to stimulate innovation in Australian small to medium businesses.
Recent economic analysis has concluded that the innovation patent system does not stimulate innovation as intended, prompting the Advisory Council on Intellectual Property (ACIP) to conclude (here) that the Government should consider abolishing the innovation patent system. IP Australia has in turn issued a consultation paper calling for submissions on the topic.
In our view, the economic benefits for Australia of the innovation patent system has always been questionable. Obviousness is one of the main bars to obtaining a valid Australian standard patent. As one court put it:
“… something is obvious if it is lying in the way, so that one who takes the ordinary route will be likely to come upon it“.[1]
Obviousness is not a bar to obtaining a valid innovation patent, i.e. innovation patents can validly cover the ordinary route that one would take. How can this be economically efficient?
That’s not to say that there isn’t an economic advantage for users of the innovation patent system. Indeed, we have previously written about how innovation patents can be (and are being) used to gain an unfair advantage (Using the patent system to gain an unfair advantage).
The takeaway message:
- innovation patents may not be with us much longer;
- make the most of them while they last.
[1] Elconnex Pty Ltd v Gerard Industries Pty Ltd, 105 ALR 247 at page 262
