Boomerang - Innovation Patent back for another throw

In an earlier article we reported that the Australia’s second tier innovation patent was likely to be abolished. However, like the iconic Aboriginal tool, it seems the innovation patent is back for at least one last throw.

Australia's Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Bill 2018 is intended to implement a number of the responses to the Productivity Commission report, discussed in the previous article, including clarifying the circumstances where parallel importing is allowed in Australia, allowing for declaration of an essentially derived variety and reducing the grace period for non-use of a trade mark to three years. However, the provisions of the exposure Draft relating to the abolition of the innovation patent have been removed.

IP Australia has advised that:

“The Government has decided to undertake further industry consultation targeted at better understanding the needs of innovative SMEs before the phase out of the innovation patent occurs.”

Thus it seems that both the profession and industry will have another opportunity to be heard and possibly prevent the innovation patent from being thrown away for good.

Second tier patent for New Zealand?

In a curious coincidence, at the about same time that the Australian innovation patent found its way back, a Member’s Bill was introduced into New Zealand parliament. The Patents (Advancement Patents) Amendment Bill seeks to introduce a second tier patent referred to as an “advancement patent” in New Zealand.

The Bill was introduced by an opposition MP and therefore does not represent the policy of the present government, or even necessarily that of the opposition National party. However the Bill has been drawn in the ballot of member’s Bills and will now be debated in the House of Representatives. If the Bill achieves sufficient support at a first reading it will be forwarded to a Select Committee for review and for public submissions. Thus while New Zealand is still a long way from having a second tier patent, it is interesting to note that there may be an appetite for the introduction of a second tier patent in at least some areas of New Zealand industry.

We will keep you updated on any developments in both Australia and New Zealand.

David Nowak - 10 April 2018


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