The full consequences of granting patents for so-called obvious inventions under the Australian innovation patents system are now being felt. Patent applicants have found that they can place significant hurdles in front of defendants in patent litigation trials. The result is that the scales are now firmly tipped to the advantage of patentees during litigation.
In cases where the patentee notices an infringement before final issuance of a patent, it is possible to file multiple divisional innovation patents, covering a defendant's device. No obviousness test applies to innovation patents. The defendant is then faced with having to invalidate the main patent (which includes an obviousness test) and each innovation patent (which has no obviousness test).
A number of recent examples are illustrative. In Seafood Innovations Pty Ltd v Richard Bass Pty Ltd, the plaintiff used three innovation patents to stop a defendant copying their fish processing machine. Another recent topical example is the global battle between Apple and Samsung reported in the news in which Apple is suing Samsung in Australia over five standard patents and five innovation patents. A number of other cases are before the courts with defendants being attacked with multiple innovation patents. Patentees are starting to consider innovation patents almost compulsory weapons for litigation.
Whilst the Australian Patent Office is pushing through legislation to tighten up the obviousness test for standard patents, to bring it into line with a European standard, it would appear that little attention is being given to the potential for use of innovation patents to stifle innovation in Australia (through enforcement of these patents that fail an obviousness test).
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