Government action and breaking legal barriers key to making patent system more accessible to SMEs, report finds

Australian small businesses are put off from participating in the patents system because of a lack of information and government outreach, and fear of steep litigation costs, a new report has found.

The independent Patents Accessibility Review was commissioned by the federal government as part of its efforts to improve its IP framework, and conducted by Emeritus Professor Raoul Mortley.

The review found certain issues with the cost and processing times of patent filings; however in a letter of introduction Mortley said these could be “easily dealt with”.

But the report focuses on three key themes that pose more of a challenge.

First, Mortley said there is a need for more activism on the part of the government, in terms of helping small business owners both with commercialisation and patenting advice.

“These two are indissolubly linked and must be integrated,” he said.

Many small business owners are seeking assistance, but struggle to find it, he explained.

At the same time, the report notes that people are often unaware that they have patentable innovations in the first place.

The government should be more active in seeking out inventions and innovators, rather than waiting for them to announce themselves.

“The approach should be more like digging for gold than watching the cricket,” the report said.

This could be countered by a public-private partnership offering such advice, and a coordinated offering of funding for certain technologies.

Second, the report found small business owners can be dissuaded from seeking patents because of “the fear of overwhelming litigation costs”, Mortley said.

The report recommended the implementation of a specialist IP court with capped times and fees; a new arbitration system from IP Australia; an affordable expert advice service; and changes to admissible grounds when an appeal is made against a decision from the Commissioner of Patents.

“If there are known solutions that are inexpensive and timely, a lot of the uncertainty would be removed from the patent system,” the report said.

“We should solve this if we are to have more participants in the IP rights system, and this is particularly important if we wish to encourage IP export, in which Australia is deficient,” Mortley added in the letter.

This is the third major sticking point.

Internationalisation of Australia IP is “crucial” Mortley said, allowing Australian businesses to export their IP.

Taking tech innovation international should mean getting involved with the patent system. However, some businesses conceal their innovations, to avoid it.

This “directly hampers our export capacity”, the report said.

The report follows consultation with the small business community, universities, researchers and lawyers on various topics, including the costs, processing times and level of government support available for small businesses trying to navigate the patent system.

In a statement, Minister for Industry, Science and Technology Christian Porter said the government is “carefully considering” the recommendations in the report.

“SMEs make up 99% of all Australian businesses, and we know the history and potential for great ideas and inventions amongst small Australian companies,” he added.

“So it is essential that we ensure their intellectual property can be safeguarded through patenting.”

Read the full report here.