Australia’s innovation patent at death’s door: Is the Government trying to cover up innovation policy reform?

Like a prisoner on death row, Australia’s innovation patent has been transferred to “the condemned-man’s cell” with the introduction of the IP Amendment (Productivity Commission Response Part 2 and Other Measures) Bill 2019 into Parliament on July 25.


As well as including provisions to abolish the innovation patent system, the Bill, if passed, will introduce an object’s statement into the Patent’s Act, that will potentially narrow patent eligible subject matter, particularly for innovations in the ICT and biotechnology fields.

Senator Duniam said in the second reading of the Bill that

“these reforms have been complex to develop, so the Government has taken additional time to consult extensively, giving stakeholders several opportunities to provide feedback and express their views. The Government has listened and is confident that the amendments strike the right balance between the needs of inventors, users of technology and the general public”.

The consultation referred to by the Senator is the one conducted by the Department of Industry, Innovation and Science in relation to “Commercialising Business Ideas”. This consultation received input from only thirty nine Australian small and medium sized enterprises (SMEs) and start-ups, fourteen “business support” providers (not patent attorneys), two patent attorneys (one non-practising), three university representatives and one IP lawyer. This clearly represents a miniscule sample size of relevant IP stakeholders, and must cast substantial doubt over the relevance of the consultation. Moreover, it was stated in the key findings of the report that “most interviewees had no or limited knowledge of the (innovation patent) system”.

It is also significant that neither the consultation submissions nor the responses to the resulting draft report are being made public. So there appears to be a lack of transparency around what shapes up as an unconvincing consultation process. This begs the question, is the Government trying to cover up innovation policy reform? If not, the Government should make the relevant submissions public and, at least, delay the passage of the Bill in its current form, so that a more informed cross-section of IP stakeholders can be consulted.

The Institute of Patent and Trademark Attorneys of Australia (IPTA) have spoken to many Australian SMEs and the consistent view expressed is that the innovation patent system is important for protecting commercially significant inventions. This simple message, which is put forward by Australian business owners in the video at the following link, has consistently been ignored by the Government.

IPTA opposes the abolition of the innovation patent system and rather supports revision of the system, which includes raising the threshold of innovative step and introduction of mandatory examination. This view is supported by a number of industry groups, including the Australia Chamber of Commerce and Industry, which represents more than 300,000 Australian businesses.

Currently the Bill is before the Senate and IPTA will make every effort to stop the passage of the Bill, at least in its current form. Shelston IP, of course, will provide regular updates.