It’s almost gone. Yes, the innovation patent, a peculiarly Australian beast, which has been the subject of interminable reviews in the recent past, is the subject of legislation before our House of Representatives that when passed will result in its abolition. The legislation was meant to be passed late last year, but it hasn’t happened yet…
It’s all very frustrating…
I have been champing at the bit to write an obituary to the innovation patent, and despite the fact that it is not dead yet, I can’t wait anymore! So allow me, gentle readers, to go off on a bit of a rant…
Ever since I had to write an opinion telling a client that they would infringe an innovation patent for colouring their tablet yellow (as this was a regulatory requirement) when it was otherwise unencumbered by patent protection, I have had a jaundiced view of the innovation patent system.
True story. The client were understandably not happy.
And that unfortunate client management situation made me wonder what the point of the innovation patent was. One senior practitioner at my firm was strongly of the view that its purpose was not…to provide a second tier patent right to foster innovation and investment by SMEs…but…a way to make the Australian patent office’s life easier. He took great delight in telling me that was the reason for my pain.
Whether it’s true or not, you can certainly view the peculiar characteristics of the innovation patent in this light. For the sake of argument, let’s run with his opinion, shall we!
I am now taking you back to a (hypothetical) conversation between patent examiners at their local (hypothetical) watering hole (the Covetous Claim) in the late 1990s.
<…Dr Who music…>
“I can’t believe it, I had to examine another patent application from a self-filing inventor!”
“Really, another perpetual motion machine?”
“Nope, they’re bad, but this was worse. I don’t even know what the invention is. Claim 1 was a picture of a bottle on a stick! How do I even begin to examine that. It’s such a waste of my valuable time!”
“Yep, they are a real drag. If only there were a better way”
<…the sounds of gentle slurping…>
“Wait, maybe there is…listen…how about introducing a second tier patent right.”
“Nope, we tried that with the petty patent and it didn’t work. We still had to examine them.”
“No, listen, this second tier patent won’t have to be examined! We’ll just say it’s granted after they have filed it! That’s all they want anyway, a certificate to pin up on the wall and something to tell their mates”
“World Taekwando Federation! But then you’ll be granting a patent that may well be invalid. It might be enforced against a defendant who would then bear the brunt of proving invalidity. We’re disclaiming responsibility for the very task with which we have been entrusted just to avoid a bit of extra work. It offends my integrity!”
“Keep your hat on. What if we say it’s granted but that doesn’t mean anything. In order to enforce it, it has to be, well, I don’t know. Let’s say…certified. Yes, certified. And we only examine when it has to be certified. That way we put 90% or more of these cases on the backburner.”
<…the sound of more vigorous slurping…>
“So, it’s granted, but can’t be enforced! That’s brilliant.”
“I know, right. But we have to do something else to make it work. Let’s make it a limited term. Say 8 years. Then unexamined patents won’t clog up the system as much. “
“Ok, but then it won’t be attractive to the self-filing inventors.”
“Yeah, but what it we give it a lower standard of validity. That will make it easier to justify.”
“Sure, hey, what if we say they have to pass an innovative step instead of an inventive step! We could say that it’s a lower standard.”
“I like it! But how do we define this lower standard?”
“Oh, we will work it out. Or get a clever patent attorney to do it.”
And thus the innovation patent was born (hypothetically).
<…Dr Who music…>
And we are back to today! Where, unfortunately, as I’ll make clear in a later post, there were many unintended consequences to introducing this second tier patent right. Consequences which made the innovation patent system far more problematic than was ever intended.
I’ll talk about these unintended consequences in the next post. Unless, something more interesting, like a fat juicy merger, comes up. Then the innovation patent might have to wait.