An innovation patent is alternative to standard patents, which are a useful way to quickly protect an invention. They can be valid up to eight years (rather than the standard 20), making them perfect for inventions in fast moving markets such as computer technology.
If you believe your invention will have a short market life and want to fast-track the patent application process, an innovation patent might be right for you. Unlike a standard patent, an innovation patent can be granted before examination. This makes it a quick and cheap alternative to the standard process. This article is a guide to the process of applying for an innovation patent.
Filing your application
Before applying for an innovation patent you need to determine whether your invention is patentable. As with a standard patent, an invention protected by an innovation patent must be new and useful. However, unlike a standard patent (which must involve an ‘inventive step’), an ‘innovative step’ is sufficient for an innovation patent.
An innovative step exists where the invention is different from what is currently known before and makes a substantial contribution to the working of the invention. This is a lower threshold to satisfy than an inventive step, which requires that the invention not be obvious. This is because innovation patents aim to protect an incremental advancement of existing technology, rather than being a ground-breaking invention.
You may wish to conduct a search of the patent register to determine whether your invention qualifies. It is free to conduct a search yourself, but you may wish to engage legal counsel to assist you.
Once you are satisfied your invention is eligible, you can file your application with IP Australia. Your application must include:
- a completed patent application,
- your patent specification, and
- the filing fee
The filing fee for an innovation patent online is $180 (rather than $370 for a standard patent).
How long does the application process take?
Your innovation patent can be granted as quickly as within one month of filing your application. Unlike a standard patent, a substantive examination is not require before the grant.
Until you have filed your application, you should keep your invention secret.
It is important to note that granted innovation patents must be examined before becoming enforceable. You can request examination at any time after the grant of your patent (within the eight years of its validity).
Examination is typically takes place within six weeks. If successful, your patent will be certified, meaning that you can enforce it in the event of any infringement. If unsuccessful, you will receive an examination report from IP Australia. This report will detail why your patent is not valid. At this point, you will have an opportunity to respond to, and overcome, any objections raised. Your patent will be certified if you are able to overcome all objections.
Phasing out the innovation patent
The Australian Government has begun phasing out innovation patents. The last day to file your application is 25 August 2021. After this date, existing innovation patents will remain in force until their expiration date, but new applications cannot be filed.
To sum up
An innovation patents are a quick and cost-effective alternative to the standard process if you believe your invention has a short market life, or is not eligible for a standard patent.
If you would like to speak with our intellectual property lawyers, just contact us via 1300 337 997 or by filling out the contact form.
Daniel is a paralegal at OpenLegal. He is a final year business and law student at the University of Technology Sydney, majoring in finance and legal futures. His interests are newlaw, legal technology and commercial law.
Phil is a director at OpenLegal. He has over 16 years experience working in private practice and in-house counsel in Sydney and London, giving him expertise in employment law, IP, finance, leases, dispute resolution, insurance and contracts.
