Second tier rights are insecure and inherently uncertain

Second tier patent regimes generate inherently insecure rights, 178 and many of the difficulties that would plague owners of second tier [footnotes omitted] patents in attempting to enforce their rights can be attributed to the inherent uncertainties of second tier protection. 79 There are legislative fixes, but they run squarely contrary to the goal of enhancing access for SMEs that have limited litigation budgets. For example, the proposed Australian Innovation Patent System would require the owner of an innovation patent to request substantive examination from the Australian patent office, and await its completion, prior to initiating or even threatening an infringement action. 180 This requirement places [footnotes omitted] the second tier patent owner in a worse position than a regular patent owner in seeking a rapid judicial intervention.'" Likewise, second tier proposals envision subjecting second tier patents to administrative revocation.' 8 2 Because third parties can participate fully in such proceedings, they are generally much more costly and complex than ex parte examination, again suggesting that the second tier patent owner is actually in a worse position than the corresponding applicant for a regular patent. 1 83