Australian Innovation Patent Advantage - Ignore it at Your Potential Peril

The facts

The Australian patent system has a unique beast called the "innovation patent". Under the Australian patent system it is possible to obtain both standard patents and innovation patents. Under the innovation patent system, while the term is only eight years, there is no test for obviousness, but rather a test for "innovative step". Further, in certain circumstances, it is possible to file innovation patents from standard patents and vice versa.

The lack of an obviousness test provides a great opportunity for patentees to take advantage of our innovation patent as a powerful strategic property in its own right and/or to maximise their advantage during litigation. Such was the case in Dura-Post (Aust) Pty Ltd v Delnorth Pty Ltd [2009] FCAFC 81, where the Full Federal Court recently decided to uphold a trial judge's decision that an innovation patent was not subject to an obviousness test, but rather to the substantially weaker "innovative step" test being