IP Australia Releases Consultation Paper On IP Reforms

IP Australia (IPA) has released a consultation paper (Paper) proposing several possible reforms to intellectual property legislation, with the objective to “streamline and simplify” regulation of registered IP in Australia. The consultation was commenced in response to the Government’s productivity agenda announced in July 2025. The Paper seeks to identify ways the Australian IP system can be improved by identifying achievable actions to “support productivity and economic growth”. 

IPA is seeking submissions in respect of the Paper from 3 March to 2 April 2026. IPA will then consider the feedback and advise the Government on next steps.

Proposals 

The reforms proposed by IPA are intended to reduce the time applicants spend on regulatory processes by reducing compliance burden and providing “greater flexibility for businesses”. The Paper makes thirteen proposals for reform across the following legislation: 

• Designs Act 2003 (Designs Act); 
• Patents Act 1990 (Patents Act); 
• Plant Breeder’s Rights Act 1994 (PBR Act); and 
• Trade Marks Act 1995 (Trade Marks Act). 

The proposals and policy issues considered are varied in nature, including proposals to expand definitions in the Patents Act, remove administrative requirements (i.e. herbarium deposits, certificates of verification for trade marks & designs) and introduce additional powers for the Registrar of Trade Marks (i.e. to finalise oppositions which are not progressing and to correct ownership errors). 

Below we provide comments on particularly interesting proposals from the Paper, including on their significance for those with existing or future IP rights. 

Proposal 1: Expanding the definition of exclusive licensees to include partial exclusive licensees (including a licensee who has exclusive rights to exploit some of the patentee’s rights or only in parts of Australia). 

Only patentees and exclusive licensees may sue for patent infringement. The term “exclusive licensee” is defined narrowly under the Patents Act as it stands, such that a licensee with the exclusive right to perform some but not all rights granted by a patent, for example selling a patented product but not making it, will not be an “exclusive licensee”. IPA’s consultation paper states that this can cause certain complexities in licensing and enforcing patent rights. For more insights into ‘exclusive licences’ in the context of Australian patents, see our blog post here: No gaps: the key to exclusivity. 

IPA has proposed allowing a “partial” exclusive licensee to bring infringement proceedings in respect of a patent. The consultation also queries whether this “partial” exclusive licensee definition should also be applied to designs and PBR. 

While this proposal will go some way to recognising the commercial reality that patentees often grant exclusivity only in respect of part of their patent rights, it may also introduce practical complexities in litigation as well as unintended consequences for patent owners. For example, “partial” exclusive licensees would presumably only be able to commence proceedings and sue for infringement in relation to the portion of the patent it has exclusivity over. This may lead to fragmented and unduly narrowed legal issues in such proceedings (absent a related requirement for joining additional relevant parties to the litigation). Additionally, patentees who have previously granted partial exclusive licences may also be unintentionally impacted by this reform as those previously without standing (i.e. partial licensees) could now potentially sue without the patentee being aware or even participating in the proceedings. This reform would thus mark a significant shift in rights to commence patent infringement proceedings.

Proposal 2: Shortening oppositions for pharmaceutical patent extensions of term.

Australia’s patent term extension regime allows the term of patent claims to pharmaceutical products per se, which are contained in medicines registered on the Australian Register of Therapeutic Goods, to be extended for up to 5 years. IPA notes that, where there is an opposition to an application for a patent term extension, the statutory timeframes for that process often run for more than a year, even though the opposition itself generally involves confined questions of law and limited evidence.

IPA proposes treating such oppositions as procedural, rather than substantive, oppositions, which would permit the Commissioner of Patents to set shorter timeframes for such oppositions where appropriate, in the aim of reducing delays and providing greater certainty to both manufacturers of medicines and the public generally. As patent term extensions are frequently the subject of court appeals, this not only suggests that there are more substantive issues at play in this area than acknowledged in the Paper but also that the quicker more procedural approach proposed by the IPA may increase the number of court appeals regarding Australia’s patent term extension regime. 

Proposal 3:Shifting to a shorter response-based examination deadline system, requiring patent and trade mark applicants to respond within set timeframes and limiting the number of permissible responses. 

The current “time to acceptance” period in which applicants can respond to an examination report is 12 months for patents and 15 months for trade marks. This period remains the same regardless of the number of responses received or whether any response is provided at all. IPA states that this leads to slower processes and that many applications are currently sitting unresolved (12,700 for patents and 29,00 for trade marks). 

IPA proposes shifting to “shorter response-based deadlines” requiring applicants to respond within set timeframes and capping the number of responses allowed by an applicant before rejection. 

IPA’s proposals may lead to shorter examination processes and a reduction in pending patent and trade mark applications. On the other hand, introducing capped responses and deadlines may risk increasing the number of appeals from IPA’s decisions, which can be more costly and time-consuming than resolving patent and trade mark objections during examination. Shorter response-based deadlines may also favour applicants who use patent or trade mark attorneys, while individuals and business owners with less experience may find it more difficult to manage these deadlines themselves.

In addition to introducing such limits, IPA has sought consultation on what those limits should be. The consultation paper refers, by way of example, to a 2 month timeframe to respond to examination reports and a limit of 3 responses. In complex cases, these limits may prove to be insufficient for applicants to fully respond to any objections raised in an examination report.

Proposal 9:  Allowing virtual marking of products protected by patents, PBR and designs.

Currently, when patent, design or plant breeders’ rights change, manufacturers must alter the physical product to avoid making false representations under the Patents Act, Designs Act or PBR Act. Current Australian legislation does not expressly allow for virtual markings.

IPA proposes to amend patent, design and PBR legislation to allow virtual markings, such as a QR code, barcode or URL which direct people to an online webpage listing the status of the relevant IP. This would reduce the cost and burden of businesses updating physical markings on products and packaging, particularly for small businesses. However, it may be a less obvious notification of the IP rights in place for competitors. This could impact the availability of the innocent infringement defence, in that competitors may have to show they reviewed the virtual markings and associated webpage as part of their reasonable enquiries into the existence of any IP rights in relation to the product.

Proposal 11:  Removing herbarium deposit requirements for plant breeders’ rights, make deposits voluntary.

Currently, applicants seeking protection for indigenous plant varieties must first provide an herbarium specimen deposit. This deposit was initially required to support activities of the Australian Cultivar Registration Authority (ACRA) relating to taxonomic and growing trials, which IPA states is now being used less. IPA notes it has received feedback that the deposit can cause delays, extra costs, and has little practical benefit. 

IPA has suggested repealing the mandatory herbarium deposit requirement for native plant varieties in the PBR Act, instead making it voluntary (as it is for non-indigenous varieties). Aside from a reduced need for the herbarium deposit, due to lessened use of ACRA as an advisory service relating to taxonomic identification and growing trials which the deposit supported, it is unclear what purpose this proposal would serve.

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