One of the most common questions we hear from inventors and business owners is simple enough on the surface. How long will my patent actually protect my invention? The answer depends on the type of patent you hold, whether it covers a pharmaceutical substance and whether you keep up with the fees required to maintain it.
At IP Guardian, our registered patent attorneys help clients understand not just how to secure a patent, but how to plan around its term so that protection lines up with their commercial strategy.
Types of patents in Australia
Patents in Australia are governed by the Patents Act 1990. Historically, there were two main types available. Standard patents protect inventions that are new, involve an inventive step, are useful and are a patentable type of invention. They offer the longest and most robust form of protection.
Innovation patents protected inventions that met a lower threshold: an innovative step rather than an inventive step. They were faster to obtain but offered a shorter term and more limited scope.
Only one of these options remains available to new applicants today. Let’s get into the ‘why’ below.
How long does a standard patent last?
A standard patent can last for up to 20 years from the filing date of the complete application. For applications that enter Australia from an international (PCT) application, the term runs from the international filing date. This is the primary form of patent protection available in Australia and applies to devices, substances, methods and processes across virtually every industry.
The 20-year term is a maximum, not a guarantee. Protection only continues for as long as the required renewal fees are paid, and once the term expires, it cannot be extended further, except in the specific circumstances that apply to pharmaceutical substances, covered below.
Innovation patents: A shorter term that is no longer available
Innovation patents offered a maximum term of 8 years and were often used to protect incremental improvements or inventions with a short commercial life.
This option has been phased out. New innovation patent applications could not be filed after 25 August 2021. If you already hold an innovation patent filed on or before that date, it remains in force and can run for up to 8 years from its filing date, provided renewal fees are paid. It must also be examined and certified before it can be enforced.
The last of these existing innovation patents will expire by 2029, at which point the second-tier system will be gone entirely. If your business previously relied on innovation patents as part of a broader IP strategy, it is worth speaking with a patent attorney about how standard patents, or other forms of protection, might now fill that gap.
Pharmaceutical patents: Extension of term up to 25 years
Pharmaceutical products often take many years to move through regulatory approval before they can be sold, which can eat significantly into the commercial life of a 20-year patent term. To address this, the Patents Act allows for an extension of term of up to 5 years for certain standard patents, taking total protection up to 25 years.
To qualify, a patent generally needs to meet several conditions.
- The patent must disclose and claim a pharmaceutical substance per se. Following a recent Full Federal Court decision (see below), this currently means the active substance itself rather than a formulation, but the High Court is reconsidering the point
- Goods containing the substance must be included on the Australian Register of Therapeutic Goods
- At least 5 years must have passed between the date of the patent and the date of first regulatory approval
- The patent must not have already had its term extended
- The extension application must be filed while the patent is in force and within 6 months after the later of grant or the first ARTG listing
Patent term law keeps moving, and this is one of the fastest-moving areas. A Full Federal Court decision in late 2025 (Otsuka Pharmaceutical Co Ltd & Ors v Sun Pharma ANZ Pty Ltd [2025] FCAFC 161) held that formulation patents, covering things like controlled release mechanisms or delivery methods, are not eligible for this extension, narrowing the scope to active substances themselves. The High Court heard an appeal from this decision in June 2026 and has not yet delivered judgment, so this position may change.
Businesses in the pharmaceutical, biotech or medtech space should factor this into their patent strategy early and seek advice on eligibility well before filing.
When does the patent term actually start?
The patent term is calculated from the filing date of the complete application, not the date the patent is eventually granted. Because examination and acceptance can take time, this means part of the effective commercial protection period is often used up before the patent is even granted.
A provisional application, often filed first to lock in an early priority date, does not itself start the 20-year clock. The term runs from the complete application that follows, which must generally be filed within 12 months of the provisional.
What can affect how long your patent lasts
Renewal fees
Standard patents require renewal fees from the fourth anniversary of the filing date, payable annually for the remaining life of the patent. If a fee is not paid on time, the patent will cease unless the fee is paid within the grace period.
Grace period
A 6-month grace period applies if a renewal fee is missed, though late fees accumulate for every month the payment is overdue. Once the grace period passes without payment, the patent ceases. Restoration through an extension of time may be possible, but only in limited circumstances, such as where an error or omission caused the missed payment, so act quickly.
Divisional applications
Where a patent is filed as a divisional of an earlier application, its term is calculated from the original parent filing date, not from when the divisional application itself was filed.
Extension eligibility
As above, only certain pharmaceutical patents qualify for extended terms, and the rules around what counts as an eligible substance continue to be tested in court.
Practical tips for managing your patent term
- Diarise renewal dates from the fourth anniversary onward, rather than relying on memory alone
- Treat the 6-month grace period as a safety net, not a routine payment window, since late fees add up quickly
- If you are in the pharmaceutical or biotech space, assess your eligibility for a term extension early, ideally well before your product reaches market
- Keep clear records of your provisional and complete application filing dates, since these determine your term
- Review your patent portfolio periodically to confirm which patents are still commercially worth maintaining, particularly as renewal fees increase in later years
- Speak with a patent attorney before assuming an older innovation patent still offers useful protection, given the system is being phased out entirely by 2029
IP Guardian, the experts in patents
Understanding how long your patent will last and what it will cost to keep it in force is an important part of any IP strategy. At IP Guardian, our registered patent attorneys help clients across Australia and New Zealand plan their patent term from filing through to renewal, including advice on pharmaceutical term extensions where relevant.
Servicing Sydney, Melbourne, Brisbane, Adelaide and the Gold Coast, our team is here when you need us. Contact IP Guardian today on 02 9071 0130.
