The number of standard patent applications filed in Australia exceeded 30,000 for the first time in 2021, increasing by nearly 3.6% over the previous year, and following on from two successive years of decline. Growth was driven primarily by direct national filings, with PCT national phase entry (NPE) filings up by less than 1% on 2020. Standard application filings by Australian residents experienced particularly strong growth, increasing by 21% over 2020 numbers, while applications by foreign residents grew by just 2%.
At first blush this looks like good news for Australian applicants, and thus for innovation in Australia. But the headline figures conceal a distorting influence on filing behaviour in 2021, namely the phasing out of the innovation patent system. It was entirely predictable that thousands of new innovation patent applications would be filed in the weeks leading up to the final deadline of 25 August 2021. What might have been less obvious is that the beginning-of-the-end of the innovation patent system would also lead to a spike in filings of new standard patent applications. Australian residents, in particular, filed more than six times as many direct standard applications in August 2021 as compared with a ‘normal’ month, accounting for a majority of the overall growth in resident filings for the year. All of these applications with a filing date on or before 25 August 2021 are able to provide a basis for future divisional innovation patent filings, for as long as they remain pending, and up to the final expiry date of the innovation patent system on 25 August 2029.
The down side of this boost in Australian resident filings, assuming that they indeed represent applications brought forward to beat the innovation patent deadline, is that we should expect to see a corresponding decline in the coming 12 months, just as we did following introduction of the Raising the Bar patent reforms in 2013.
Provisional filings suffered a further decline – the largest since 2013 – of nearly 12%. No doubt this can also be attributed at least partly to the phase out of the innovation patent system, with some applicants electing to file an innovation or standard application directly, prior to 26 August 2021, rather than file a provisional application as a basis for a future priority claim. The 2013 drop in provisional filings was similarly influenced by a desire to get a standard patent application into the system, and request examination, prior to commencement of the Raising the Bar patent law reforms. But even accounting for these disruptions, provisional filings have been in a general decline for many years, and 2021 looks to be a continuation of that trend. Provisional applications are filed almost exclusively by Australian residents, so this is not a good sign for the state of innovation and IP protection in Australia.
In a surprising turn of events, the growth in standard filings by Chinese applicants did not continue in 2021. Following a number of consecutive years of significant growth, I had previously predicted that 2021 could be the year in which filings by Chinese applicants surpassed those of Australian residents. But the jump in Australian filings combined with a 7% decline in filings from China to defeat that expectation. (For now.)
Australians have therefore remained the second largest users of their own patent system, with US residents once again being overwhelmingly the top filers. Standard applications from the US increased by nearly 5% in 2021, following a 1.6% decline in 2020. The other members of the top five countries of origin – China, Japan, and Germany – all experienced declines in 2021.
But enough with the summary – let’s look at some charts and tables!