Excesses of innovation patent damages pulled back

In a significant decision, the Full Federal Court has overturned an earlier single judge Federal Court decision regarding the date from which infringement of an innovation patent can occur. One of the unusual implications of the earlier decision was that a divisional innovation patent could be infringed before it was published, or even filed. The Full Court has now determined that infringement cannot occur until grant of the innovation patent.

Key points

• An innovation patent is a short-term patent available under Australian patent law. It has a lower patentability threshold, as there is no requirement for an inventive step. Rather the invention need only involve an "innovative step" – that it varies from the prior art in a way which makes a substantial contribution to the working of the invention. Other usual requirements for patentability such as novelty, support, clarity etc. still apply.