The Australian patent system has a troublesome beast called the
innovation patent. It is possible to obtain both standard patents
and innovation patents. Under the innovation patent system there is
no test for obviousness, but rather a test for an innovative step.
Further, in certain circumstances, it is possible to file
innovation patents based on standard patents and vice
versa.
The lack of an obviousness test means that the innovation patent
system is arguably a system under which it is easier to obtain a
patent and to launch successful infringement proceedings. Such was
the case in Dura-Post (Aust) Pty Ltd v Delnorth Pty Ltd
[2009] FCAFC 81, where the Full Federal Court decided this month 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. The innovative step test is something
peculiar to Australian jurisprudence. In the Dura-Post
appeal, relating to the
