Accessibility Review of the Patents System.


The Australian government has commissioned an independent review of the accessibility of the patents system for small-to-medium sized enterprises (SMEs). There is a link to a discussion paper on that web page.

According to the announcement, the review “is part of the Government’s commitment to ensuring our intellectual property (IP) framework supports the needs of smaller businesses.” The review is being led by Professor Raoul Mortley AO. The review intends to investigate costs, processing times and SME awareness levels. It also intends to recommend options to improve access and support.

The discussion paper sets out nine questions for consultation:

  1. Are the official fees set by IP Australia a barrier for SMEs?
  2. Are professional fees a barrier and are they good value for money?
  3. Are IP Australia’s processing times reasonable?
  4. Does the Australian Government provide useful support? How can this support better reach SMEs?
  5. Is the fear of litigation putting SMEs off patenting?
  6. Is the fear of litigation well founded? Is enforcement actually that difficult and expensive?
  7. How could enforcement be made more accessible? Is it possible for costs to be contained at certain points?
  8. How and when can SMEs best be encouraged to consider patents as part of their commercialisation and broader IP plans?
  9. Any other comments or suggestions?

The discussion paper sets out a few initial findings.

There are some points that are worth considering and that are often overlooked or misunderstood.

Commercialisation is difficult and is often significantly more expensive than patent prosecution and even enforcement. It follows that applicants need to be ready to apply themselves diligently to the process of raising capital and perfecting the invention immediately after the first patent application covering the invention is filed. Generally, commercialisation is not a part-time job.

A patent is a monopoly. As such, it is not a right to an invention, but rather a right to exclude others from practicing an invention. Good governments are anti-monopolistic. It follows that a good patent system should have a stringent examination protocol and thorough legal precedent. It requires skill and experience to represent applicants in such a system. It is therefore to be expected that patent prosecution and enforcement can be expensive.

It is true that the access to finance plays a large part in the outcome of litigation. However, that needs to weighed up against every person’s right to appeal decisions to the highest authority and to use the best resources available to do so. It would simply be inequitable for there to be some ruling (absent the parties’ agreement) that the parties are restricted from appealing a decision, based on the cost of doing so. Not only would that be inequitable, but it would also undermine the value of an enforceable patent.

We hope that the review does lead to some positive changes and not merely to a conclusion that the system is too expensive or is only benefitting “larger companies”.