An Innovation Patent has a maximum duration of 8 years, subject to payment of renewal fees. A innovation patent requires an invention to be novel and "innovative". This requirement is lower than required for a standard patent.
Innovation patents are being phased out. An innovation patent filed on or after 26 August 2021 will only be granted if the application has an effective filing date (not its priority date) before 26 August 2021. This means any application filed on or after 26 August 2021 needs to be a divisional application of an existing standard application or innovation patent if it is to be granted.
It will not be possible to obtain the grant of an innovation patent filed on or after 26 August 2021 that merely claims priority from a provisional application or a foreign application filed before 26 August 2021. This is because it is the filing date of the Australian Innovation patent application and not the priority date that determines whether the innovation patent is granted.
Innovation patent applications filed on or after 26 August 2021 which do not have an effective filing date before 26 August 2021 will fail the formalities check and will lapse 2 months after the issue of a formalities report.
An innovation patent application is automatically examined but only for formalities. If no objections are raised the innovation patent is granted and published. This usually occurs in a matter of weeks after filing the application. There is no opposition period before grant and no official fee.
An innovation patent is granted without substantive examination. It is not possible to take or threaten court action until the patent has been examined and certified by the Patent Office. Until an innovation patent is certified one can only advise third parties of its existence. Examination may be requested at any time by the Patentee or by a third party. If objections are raised during examination and cannot be overcome the patent is revoked. Although court action cannot be taken until an innovation patent is certified, a claim for damages or an account of profit may be made from the later of the date of grant or the date of first infringement, which may be before the date of certification.