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Business Bytes - Innovation Patents as Strategic Tools

September 2017

As part of the K&L Gates Business Bytes series, Sydney partner and patent attorney, Nigel Lokan, discusses the use of innovation patents as strategic tools for clients.

Businesses need to know that Australia has a second tier patent known as the innovation patent. These can be obtained rapidly and provide the same scope of rights and remedies for infringement as standard patents.

As they require a lower threshold of inventiveness and are therefore inherently more difficult to invalidate compared to standard patents, they can be used as strategic tools to provide protection against competitors.

When faced with the launch of a competitor's product, an innovation patent application can be filed as a divisional of a currently pending standard application, the claims of the innovation patent application being targeted to the infringer's product. The claim scope is narrow thereby optimising the likelihood that the claims will be valid, yet still captures the infringer's product. This provides the patentee with the best chance of success in an infringement action.