5.6.15.2 Types of Innovation Patents

Date Published

Key Legislation: 

Patents Act:

  • s52(3) Formalities check and accpetance of innovation patents
  • s79B Divisional applications prior to grant of patent
  • s79C Divisional applications for innovation patents may be made after grant of an innovation patent
  • s80 Chapter does not apply to innovatino patents
  • s81 Grant of patent of addition​​​​​​​​​​​​​​​​​​​​​

Note that the innovation patent system has been phased out.

Innovation applications must have a date of patent before 26 August 2021. This can be achieved by:

  • the innovation patent application being a divisional application where the parent application has a date of patent before 26 August 2021;
  • the innovation patent application being a divisional application where the parent application is a granted innovation patent; or
  • converting any standard application that has a date of patent before 26 August 2021 to an innovation application before acceptance.

In addition, every claim in an innovation patent must have a priority date that is before 26 August 2021.

Section 79B and section 79C divisional applications

Sections 79B and 79C provide for the filing of divisional applications for innovation patents.  

Under s79B, the divisional application is filed prior to the grant of a parent application (either a standard patent application or an innovation patent application).

The parent application must have a filing date, or otherwise have a date of patent, that is before 26 August 2021.

Under s79C, the divisional application is filed after the grant of a parent innovation patent.

The divisional application must be filed within certain time limits and meet particular requirements. Information on procedures relating to divisional applications is provided in 5.6.10 Divisional Applications.

Association with provisional applications 

The Act does not allow for “division” of an innovation patent application from a provisional application. Furthermore, innovation patent applications cannot be directly “associated” with one or more provisional applications in order to take advantage of an earlier disclosure in the provisional application(s).

Innovation patent applications can be made as divisional applications from parents with a filing date, or otherwise have a date of patent, that is before 26 August 2021. It is possible that the parent application may be associated with one or more provisional applications to take advantage of an earlier disclosure in the provisional application(s).

Innovation patent applications can also be made by converting any standard application that has a filing date, or otherwise a date of patent that is before 26 August 2021 to an innovation patent application. It is possible that the standard application to be converted may be associated with one or more provisional applications. ​​​​​​

Convention applications 

An innovation patent application cannot be a Convention application.

Innovation patent applications can be made as divisional applications from parents with a filing date, or otherwise have a date of patent, that is before 26 August 2021. It is possible that the parent application may be a Convention application to take advantage of an earlier disclosure in the basic application(s).

Innovation patent applications can also be made by converting any standard application that has a filing date, or otherwise a date of patent that is before 26 August 2021 to an innovation patent application. It is possible that the standard application to be converted may be a Convention application to take advantage of an earlier disclosure in the basic application.

Patents of addition innovation

Under s80, an innovation patent cannot be a patent of addition. This exclusion extends to innovation patents in the role of either parent or additional (by virtue of s81).

International (PCT) applications 

A PCT application cannot be an application for an innovation patent. However, it is possible to convert a standard national phase application, with a date of patent, or PCT filing date before 26 August 2021, to an application for an innovation patent, provided this is done before acceptance (Chapter 10 of the Regulations).​​​

Parallel applications 

"Parallel applications" or "parallel protection" refers to the practice of having both a standard patent application and an innovation patent application in respect of the same subject matter proceeding at the same time. The two applications may be linked together utilising the provisions of s79B and s79C, or they may be quite independent applications. The rationale behind parallel protection is to take advantage of the shorter time taken to grant an innovation patent, as well as the longer term and the absence of a statutory limit on the number of claims applying to a standard patent.

See also 5.6.9.11 Parallel Applications for Examination Practice.