The Australian federal government has proposed an overhaul of patent laws to make applicants go through a more stringent test of innovation. The move has brought sharp criticism from lawyers over its already rigid requirements, but FB Rice managing partner Paul Whenman is optimistic.
Whenman said that the reform would be a good step towards better compliance with international patent standards. He pointed to the innovation patent, which, unlike a standard (global) patent, is only recognised within Australia and leaves companies at risk of infringing other patents. “In Australia, you’re seeing innovation patents getting granted after merely demonstrating that something is an innovative step – not whether it’s different and obvious, as a standard patent would require. The innovation patent was introduced to help businesses, but no other country has an equivalent,” he argued.
He believes that abolishing the innovation patent would help Australia better comply with international patent standards. Such a move would be timely, as there is demand from within Australia for standard patents due to increasing business with major trading partners Korea, Japan and China.
“Most of our international clients feel that the innovation patent gives no guarantee they can get a patent in other countries. If you don’t have a patent that complies with other countries then you’re fooling yourself, because it means nothing to have an innovation patent overseas,” he said.
Whenman said that there would usually be no more than a 30% difference in initial costs to get a standard patent, as opposed to an innovation patent. However, there would be a difference in on-going renewal fees to keep the patents effective. “The standard patent lasts for 20 years, while the innovation patent lasts for eight years; it would cost more in the long run to have a standard patent,” he said.
If the proposed changes go ahead, law firms may see a slight increase in income. However, an overall drop in innovation patent litigation is likely to wipe out most of that. “I don’t think the reform would change our earnings much, maybe just by 5–10%,” Whenman said.