The Intellectual Property Amendment (Productivity Commission Response Part 2 and other measures) Bill 2019 was passed by the Australian Senate on 16 October 2019. For the purposes of this post, the passing of the Bill will result in the phasing out of the innovation patent system.
The phasing out will be achieved by amending the Patents Act 1990 as follows:
That it is a requirement of the formalities check that the date of the patent (the filing date, if the patent is granted) would be a date before the day the amendment commences.
During substantive examination of the innovation patent, the Commissioner must be satisfied, on a balance of probabilities, that each claim in the complete specification has a priority date that is before the day the amendment commences.
These amendments will ensure that neither existing innovation patents nor the right to file applications for innovation patents claiming priority from applications filed before the commencement date are affected by the passing of the Bill.
The Bill does provide for a review of the accessibility of patents for small and medium sized enterprises. The matters, which are not limited, do not specifically set out that there should be a consideration of the merit of patent protection for inventions that do not involve an inventive step, which is required for standard patents.
Both the House of Representatives and the Senate will now need to agree to the final text of the Bill. The Bill will then be presented to the Governor-General for assent.
We will monitor the progress of this legislation. Please contact us if you have any questions or concerns with the loss of the innovation patent system.