Self-knowledge, narcissism, and accessibility of Australia’s patent system

His scholarship focuses on philosophy and the history of ideas. His published works include: “Plotinus, Self and the World”, which addresses the question of the individual subject in its relationship with the world; and “French philosophers in conversation”, a collection of interviews that explore themes of the Parisien philosophical scene and feminism, literature, phenomenology and semiotics. The focus of his current work is self-knowledge, narcissism, and the idea of the future. He is Professor Raoul Mortley AO – the man chosen to lead the Government’s review of the Australian patent system and its accessibility for small and medium sized enterprises (SMEs).

Terms of reference

The Australian patent system review was enacted by an amendment to the Intellectual Property Laws Amendment (Productivity Commission Response Part 2 and Other Measures) Act 2020, as a concession by the Government for the phasing out of the Australian innovation patent system. The review will run from August 2020 to February 2021 with the final report for the Government due by May 2021.

The terms of reference for the review include investigating:

• the cost of applications for patents;

• processing times of patents;

• advice provided by the Australian Government with respect to the patent application process;

• awareness of the patent application process;

• the cost and times required to enforce standard patents;

• any other barriers or impediments that prevent Australian businesses filing and obtaining patents; and

• Government programmes to assist Australian SMEs seeking patent protection, including protection overseas.

The issues

A glaring omission from the terms of reference relates to the question of how commercially significant incremental innovation, which arguably covers the majority of innovation by Australian SMEs, can be protected with certainty. This is currently the domain of the condemned innovation patent system, which will cease after 25 August 2021.

The review aims to recommend changes that enhance the accessibility of the Australian patent system to Australian SMEs and improve the support provided to Australian SMEs applying for IP protection both in Australia and overseas, taking into account the factors set out in the terms of reference.

In relation to improving support, a new IP Australia online portal, “jumps the gun” by offering SMEs the option of engaging with an IP Australia case manager for “tailored advice” about protecting innovation. IP Australia’s advice should responsibly include a heavy emphasis on engaging with qualified IP professionals.  The IP Australia portal also includes an option to fast track standard patent prosecution. This appears to be an injudicious compensation for the phase out of the innovation patent system, which genuinely offers a rapid and affordable means for protecting incremental inventions. To be confident about standard patent protection, numerous incremental innovations for one product may need to be independently developed – multiplying the time and expense of innovation.  Thus, the Patent Office decision makers have failed to grasp that the advantages of speed and affordability offered by the innovation patent do not simply reflect the time and costs of patent prosecution but alone but also the time and costs of innovating. 

The idea of the future

Australian SMEs are the main source of new jobs and growth in the Australian economy (as acknowledged by the Productivity Commission Report on Intellectual Property Arrangements in Australia, 2016) and are therefore major contributors to the Government’s jobs and growth agenda. Supporting SMEs and improving the available options for protecting SME innovations extends well beyond a philosophical inquiry. For this review to be successful, Professor Mortley will need to carefully assess the relevant stakeholders’ submissions and make strong practical recommendations that ensure protecting SME innovation proceeds in Australia with certainty and confidence.