Intellectual Property

Is your idea or product protected?

Intellectual Property (IP) refers to the intangible ownership rights that include patents, trademarks, copyrights and trade secrets. You must take advantage of these rights to protect your business name, and to legally protect your original ideas or inventions.

Intellectual Property

Intellectual Property (IP) is the term used to describe a range of intangible ownership rights that include patents, trade marks, copyrights and trade secrets. In other words, they are special rights that you may have in relation to your ideas, secrets or inventions. You must take advantage of these rights to protect your business name, and to legally protect your original ideas or inventions.

Why is it important?

Successful businesses have strong competitive advantages. Competitive advantages include the attributes of your product or service that competitor’s find difficult to copy. For example, the quality of your staff: their skills, attitudes and relationships with customers and the innovative features that constitute the intellectual property of the business.

What is it?

Intellectual property is an extremely important and valuable asset and should be a major consideration from the very earliest stages of your commercialisation activities. Forms of IP vary widely, from scientific inventions and industrial designs to literary and artistic works and company and domain names. IP may be protected in many different ways, depending on its nature and on the type of business in which it is used.

Some of the different kinds of IP protection include:

• patents (for inventions)
• registered and unregistered trade marks (for brand names and company names)
• copyrights (for numerous things, including literary and artistic works)
• confidential information (for trade secrets)

Why should I protect my IP?

Securing your IP allows you to protect the ownership rights of your original idea or invention. If you disclose your IP before you protect it, you run the very real risk of losing control of your IP, and losing an important part of your venture’s competitive advantage.

You should be fully aware of your rights and the pros and cons of formal IP protection prior to disclosing your idea or invention with any entity or audience.  From the outset you should seek advice from your organisation’s internal experts on IP, an appropriately qualified solicitor specialising in IP, or a patent and trade mark attorney.

Following this, one option that may be effective is to use protection provided by trade secrets and to keep your idea confidential.

Confidentiality Agreements

In the initial stages of commercialisation, you may find it necessary to disclose details about your idea or invention to prospective investors, partners or clients before you have IP protection in place. The use of formal confidentiality or non-disclosure agreements can be a valuable tool at this time. This will require that other parties not disclose or utilise your IP. Your patent attorney or in-house legal advisor can assist you with the preparation and use of these documents.

Management of IP after you protect it

It is also important to note that as your business grows, success may depend on appropriate management of an expanding IP portfolio. Simply having ownership of or access to IP and associated rights does not guarantee a successful business – these assets must be effectively managed just like any other business assets. Again, advice on implementing IP management strategies should be sought at an early-stage.

IP Australia

A major source of advice about intellectual property is IP Australia, a division of the Commonwealth Department of Industry. IP Australia advises:

• IP helps keep your company ahead of the pack.
• IP is as important to commercial success as business, marketing and financial plans.
• Smart businesses list IP on their company balance sheet with all other assets.
• Do not talk about your idea or make it public too soon or you may lose the legal right to your idea.
• Make claiming ownership one of the first rather than last steps in your business planning.

Trade Secrets

Trade Secrets are aspects of your business that you wish to protect from disclosure, often by employees to other businesses.  As the employer, you need to be careful that new, existing or past employees do not openly discuss aspects of your business to outsiders. This could lead to competitors gaining valuable insights about your new products or services that give them a competitive advantage.

One way to protect trade secrets is to have a written document, such as an employment contract or confidentiality agreement, that specifically states that employees cannot disclose the nature of your business to others. Suppliers and alliance partners might also be covered in separate documents.

If a person uses a specified trade secret, then your company can take legal action if it has put in place such agreements or contracts to protect trade secrets. Often this involves going to court to seek injunctions or other forms of relief such as damages. This process can be time consuming and expensive, so you need to think carefully and to seek professional advice before you begin.

Copyright

Copyright is traditionally the protection of the original ideas and works used by composers, authors, musicians and screenwriters. Today, copyright protection is still used by these individuals together with groups that include computer programmers and other IT specialists. It is important to note that copyright protects the original expression of ideas, not the ideas themselves.

Like many aspects of intellectual property law, copyright issues can be complex. Copyright does not offer total protection. However, it does put your business in a position where it can begin legal proceedings against someone who infringes your rights.

If you have an original work in which copyright may subsist, it is important that you take steps to claim ownership of copyright as one of the first rather than last steps in your business planning.

Some Final Points About Copyright

It is a right conferred by Commonwealth statute (the Copyright Act 1968).

It is a right that is created automatically: there is no formal application or registration process. It is therefore a right which is claimed by its owners, but these claims may only be tested in court.

It can be claimed by using the word “copyright” and/or the symbol ©, along with the mention of the creator of the work and the year in which it was created (this is not mandatory, but is a good way of clearly asserting your claim).

Works in which copyright exists cannot be copied without permission of the person or organisation responsible for creating the work.

Patents

Patents are the most frequently used legal means of intellectual property (IP) protection. According to IP Australia, a patent is a right granted for any device, substance, method or process, which is new, inventive and useful.

A patent is legally enforceable and gives the owner the exclusive right to commercially exploit the invention for the life of the patent. This is not automatic; you have to apply for a patent.

All applications for standard patents are examined to ensure they meet the necessary legal requirements for granting a patent. Most importantly, a patent grants you a theoretical monopoly (an exclusive right to make money from the idea) for a fixed period of time. At the end of this time period, the patented idea becomes public property. It is then freely available for anyone to use.

There is no such thing as a ‘world patent’. You need to seek IP protection in each country according to the laws and conventions of that country. Patents are expensive to obtain however, you can choose only to patent your technology in selected countries to reduce costs.

Trade Marks

A Trade Mark is a symbol, design or text that is used to identify a business or a product. Some of the most famous trademarks today include the Nike, Coca-Cola, Toyota, the Apple Computer apple icon and many of the logos that appear on clothing and fashions. Trademarks include brand names, logos and slogans.

IP Australia advises that it is not necessary to register your trademark in order to use it. However, registration is advisable because it can be an expensive and time-consuming exercise to take action under common law. A registered trade mark gives you the exclusive legal right to use, licence or sell it within Australia for the goods and services for which it is registered.