01 October 2020

Patents Accessibility Review

The Patents Accessibility Review Discussion Paper from the Department of Industry, Science, Energy and Resources (aka the Mortley Review) states 

 The Australian Government recently agreed to a review of the patent system, specifically with a view to its accessibility and usefulness for small to medium enterprises (SMEs). Since you have an involvement in the area, may I request that you kindly consider making a submission on the following consultation questions? I am the appointed reviewer, and would greatly value your input. The use of the patent system is vitally important to the development of Australian intellectual property (IP) for the innovation sector, and the revival of our manufacturing industry. Some changes to the patent system have been made as a result of widespread consultation undertaken by several bodies over the last eight years. Following these changes, the Government is seeking to ensure that the patent system represents an accessible and valuable resource for the Australian public, but in particular the SME sector.

The 'Principal issues for clarification ' are

1. The cost of applications for patents: [Mortley has been consulting on the IP Australia processing charges and the question of professional fees levied by IP lawyers or patent attorneys]. 

2. The processing times of patent applications. 

3. The value and degree of helpfulness of the advice provided by the Australian Government with respect to the patent application process. 

4. The general awareness of the patent application process. 

5. The cost and times required to enforce standard patents. 

6. Other barriers or impediments preventing Australian SMEs filing and obtaining patents. 

7. The usefulness of Australian Government programs to assist Australian SMEs seeking patent protection, including protection overseas.

The Consultation Questions are summarised as - 

Question 1: Are the official fees set by IP Australia a barrier for SMEs? 

Question 2: Are the professional fees for patent attorneys and IP lawyers a barrier for SMEs? Are professional fees good value for money? 

Question 3: Are IP Australia’s processing times reasonable, noting that expedited examination is available? 

Question 4: Is the support offered by the Australian Government on patents useful for SMEs? How can these resources better reach SMEs? 

Question 5: Is the fear of litigation putting small businesses off patenting? 

Question 6: Is the fear of litigation well founded? Is enforcement actually that difficult and expensive? 

Question 7: How could enforcement be made more accessible? Is it possible for costs to be contained at certain points? 

Question 8: How and when can SMEs best be encouraged to consider patents as part of their commercialisation and broader IP plans? 

Question 9: Do you have any other comments on the issues raised in this paper, or on any other barriers that may hinder SMEs from accessing the patent system? Do you have any other suggestions for initiatives to improve accessibility?