Last month, IP Australia issued a notification informing applicants that, due to a high volume of new filings, they may experience delays in having innovation patents granted. Innovation patents are issued following a formalities examination only – substantive examination for novelty, innovative step, and other requirements, occurs after grant, and only upon request. As a result the delay between filing and grant is typically relatively short, and has historically been less than four weeks. However, with a phasing-out of the innovation patent system now looming, and Chinese applicants in particular using the system to claim government subsidies on foreign granted patents, innovation patent applications are currently being filed at over four times their ‘normal’ historical rates. This obviously means a lot of extra work for IP Australia to process all of these additional applications.
The good news is that after letting things get a little out-of-hand over summer (when, presumably, many staff were on annual leave), IP Australia now appears to be bringing the situation back under control. Average pendency (i.e. the delay between filing and grant) peaked at 68 days for innovation patents granted in March, before falling to 52 days in April. In both March and April, the number of patents granted exceeded the number of new applications filed, and the number of pending applications fell from a peak of 1229 in February to 879 at the end of April. While this is still much higher than historical levels of about 100-150 innovation patent applications pending at any given time, it is clear that IP Australia has allocated additional resources, and has ramped-up handling of new innovation patent applications to the point where it is now once again processing them faster than they are being filed.
Up until March, it looked as though delays could continue to grow. It now seems likely that average pendency will be back below a month by July. This is, of course, barring any further surge in demand that outstrips processing capacity – which could certainly happen, given that the final date for filing new innovation patent applications before the phase-out begins is 25 August 2021, and a last-minute rush might be expected. But, for now at least, it looks like IP Australia has the situation in hand.