Same-same but different: will the fate of second-tier patents be the same on both sides of the Tasman?

Discussions regarding the abolition of the Innovation Patent in Australia began some time ago.  Although for a while it was thought that the Innovation Patent might live on, an exposure draft of legislation to enact the Government’s intention was recently released.

Meanwhile in New Zealand, an unexpected Bill to establish a similar second-tier species to the Innovation Patent: the ‘Advancement’ Patent, was introduced to Parliament earlier this year.

However, as of this month, it seems the fate of second-tier patents will be the same on both sides of the Tasman.

New Zealand

New Zealand MP, Dr Parmjeet Parmar, is the Opposition’s Spokesperson for Science and Innovation and a member of Parliament’s Economic Development, Science and Innovation Committee. Dr Parmar introduced the Patents (Advancement Patents) Amendment Bill 2018, which would have seen the implementation of Advancement Patents in New Zealand. The Advancement Patent was intended to allow protection for incremental advancements that may not otherwise qualify for a standard patent. Similar to the Innovation Patent in Australia, this would have been affected by lowering the threshold for inventiveness for grant of these patents.

At the conclusion of the first reading in the NZ parliament on 8 August 2018, a motion to pass the Bill failed.  The Government was not in favour of the amendments proposed by the Bill so this outcome was somewhat expected.

Perhaps it is unsurprising that New Zealand does not appear inclined to introduce a second-tier patent at this time considering the developments in this area in Australia.

Australia

Submissions on Australia’s draft Intellectual Property Laws Amendment Bill (Productivity Commission Response Part 2 and Other Measures) Bill 2018, which includes the effective abolition of Innovation Patents, are due by 31 August 2018.  It is expected that the Bill will be introduced to Parliament in the following months.

If Part 2 follows a similar trajectory to Part 1, which passed the Senate last week and is currently awaiting Assent, Innovation Patents may be gone in Australia by the middle of 2019.

Summary – call to action!

For now, Innovation Patents are still available in Australia and existing filings should survive the change in law. Interestingly, the last month saw a 25% increase in the average number of Innovation Patent filings compared with the previous six months, perhaps prompted by the release of the draft Bill and their imminent disappearance!

The Innovation Patent in Australia is well–directed to products that have a shorter lifecycle, but nevertheless are sufficiently distinct from the products of competitors as to make a contribution to the market value of the product.  If you are thinking of filing an Innovation Patent application, we recommend you speak with your Patent Attorney sooner rather than later.

We will keep you updated on the progress of the Bill here in Australia.

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