The Patents Act 1990 (Cth) currently provides for two types of patent.
- A standard patent has a term of up to 20 years from the date of filing of the complete specification (provided that renewal fees are paid).
- An innovation patent – which protects incremental advances in technology – has a term of eight years.
Patent terms may not be extended except in specific circumstances, for standard patents covering pharmaceutical substances only.
Importantly, there is currently a proposal to phase out the innovation patent system with legislation expected to be introduced into the federal parliament in late 2018 or early 2019.
An application for a standard patent is subject to a full examination as a condition of grant. By contrast, an application for an innovation patent is quicker and cheaper to obtain, needing only to be examined for compliance with formal requirements before it is registered. An innovation patent may not be asserted against an alleged infringer unless it has been substantively examined and certified. This can be requested and paid for at any time by the patentee or any third party (who might have concerns as to validity and/or infringement), or directed by the Commissioner of Patents.
The Patents Act provides procedures to challenge a patent by opposing the application (before grant) or asking the Commissioner of Patents to re-examine the patent. An opposition may involve written evidence and an oral hearing before a delegate of the Commissioner of Patents, who decides the outcome. Decisions in relation to patent eligibility or oppositions may be appealed to the Federal Court of Australia.
Both standard and innovation patents may be also challenged by proceedings in the Federal Court of Australia seeking an order revoking a patent on the basis that it is invalid. Grounds of invalidity include lack of proper subject matter, lack of novelty, lack of inventive (or, in the case of an innovation patent, innovative) step, lack of utility, and other technical grounds. Such proceedings can be commenced on their own, to "clear the way" for a product launch, or as part of a defence to infringement proceedings.
Australia is a party to the Paris Convention, under which a foreign applicant has a certain period from the date of an original application in a member country within which to file a similar application here. Australia is also a party to the Patent Cooperation Treaty, under which a single application in a member country may be treated as an application in one or more other member countries.