Government considering tightening innovation patents

The government has invited comment from the public on “tough new” amendments to intellectual property laws to tighten up innovation patents.

The reforms are to the Intellectual property Laws Amendment Act 2012, better known as the Raising the Bar bill, which was passed in March this year.

There is a lower bar for the granting of innovation compared to regular patents, the former only requiring an “innovative” rather than an “inventive” step.

“It may seem like a trifling distinction, but weaker patents can create problems,” said Parliamentary Secretary for Industry and Innovation, Mark Dreyfus.

“The patent system must balance public and private interests. We want sufficient protection to reward inventors but not block obvious follow-on innovation,” he said.

Innovation patents have a nominal term of eight years compared to the 20 years granted with a standard patent.

Innovation patents were introduced in 2001 to encourage IP protection for small to medium business. However, a Federal Court decision in 2009 substantially lowered the bar for the granting of innovation patents.

According to IP Australia: “Since the Delnorth (2009) decision in the Federal Court, relatively obvious minor improvements to inventions have been patentable.

“There has been an unusual growth of innovation patent applications for certain technologies. There is some evidence that larger companies might be using the innovation patent system to extend the life of their patents and deliberately targeting competitors.”

According to Mr Dreyfus, larger companies are now exploiting innovation patents to extend the life of their existing patents and deliberately targeting competitors, a process known as ‘evergreening.’

“Left unchecked, this could lead to more expensive medicines and a lack of competition in some markets,” Mr Dreyfus said.

Public consultation on the Raising the Bar bill is currently underway, looking at innovation patents, improving mechanisms fro trademark and copyright enforcement and assisting the operations of the IP profession.

“These are significant reforms aimed at streamlining and improving our intellectual property system,” Mr Dreyfus said.

“I encourage all interested stakeholders to provide their input, so that the final legislation is as robust as possible. This will make for a smooth transition when the new legislation takes full effect on 15 April 2013.”

Public consultations are open now and will close on 25 October 2012.

More information on the proposed amendments to innovation patents can be found on the IP Australia website.