Business Basics: Intellectual Property Explained

Intellectual property (IP) is the term used to describe the wide range of intangible property resulting from the intellectual and creative efforts of individuals and businesses.  Almost every business has some form of IP that needs protection due to the competitive point of difference it gives you in your market.

Simply creating IP does not necessarily provide ownership or protection. There are a range of IP laws designed for the protection of your ideas including:

• copyright
• patents
• trade marks
• registered designs
• plant breeder’s rights
• circuit layout rights

 

Copyright

 

Copyright protects works such as written material, artistic works, cinematography, music and other works of creative authorship.  In Australia, copyright protection is provided under the Copyright Act 1968 and is an automatic right that lasts for 70 years after the death of the creator – therefore you don’t need to register your work with a government body.

The © symbol is used for notification purposes.  It is simply a reminder to others that the work is protected by copyright, however it is not required for the protection to exist.  While copyright protection is free and automatic, consider placing a copyright notice in a prominent place on your work.  It may also be required to establish copyright in countries other than Australia.

 

Patents

 

If you’ve developed a new product, or process of doing something, you can apply for a patent to give you rights over your invention.  A patent gives you a limited monopoly, or a limited period of time, in which you have exclusive rights to commercially exploit your invention in exchange for publishing the details of the invention.  In Australia, there are two types of patents – standard and innovation.

A standard patent applies to an invention that is new, useful, and involves an inventive step.  Your invention will be examined by IP Australia and will need to satisfy the requirements of the Patents Act 1990.  A standard patent is legally enforceable and usually lasts up to 20 years.

An innovation patent applies to an invention that is new, useful, and involves an innovative step.  Your invention will not undergo an examination (unless you request it), and this is designed to give quick, affordable protection for up to 8 years.  They are particularly useful for SME businesses seeking a first-to-market advantage over competitors.

 

Trade marks

 

A trade mark is the most common IP right that SME businesses consider as it can distinguish your products and services from those of your competitors.  Trade marks can also increase business value to investors and give you future licencing opportunities

Any feature (or combination of features) that distinguishes your products or services from others can be registered as a trade mark. This can include a letter, number, word, phrase, sound, smell, shape, logo, picture, signage or aspect of packaging.

Once registered, the trade mark is protected in all Australian states and territories for an initial period of 10 years.  For international protection, you would need to register your trade mark in each individual country you require protection.

 

Registered designs

 

While a patent protects how something works, a registered design protects how it looks.

You can register the design of a product if it has an industrial or commercial use, and has a visual appearance that is both new and distinctive.  ‘Design’ includes the shape, configuration, pattern or ornamentation that applies to your product’s unique appearance.

Under the Designs Act 2003, registration will protect your design for up to 10 years and prevent others from using it without your permission.

 

Plant breeder’s rights

 

Plant breeder’s rights (PBRs) are similar to patents, but apply to new plant varieties.

Registered PBRs give the holder exclusive commercial rights to a registered variety of plant, vine or tree. The holder has the legal right to exclude others from certain commercial activities related to the variety for 20 years (25 years for trees and vines).

Protection offers control over the production, sale and distribution of the new variety, allows you to receive royalties from the sale of the variety and to sell your rights.

 

Circuit layout rights

 

Circuit layouts are the layout designs or plans of integrated circuits and computer chips used in electronic equipment (also known as computer chip or semi-conductor chip designs).

Similar to copyright, circuit layout rights automatically protect original layout designs for integrated circuits and computer chips under the Circuit Layouts Act 1989.  Rights do not have to be registered or granted.

Rights exist for 10 years from when the circuit layout was first created, regardless of whether or not it is used commercially.

 

What isn’t IP?

 

Your company name, business name and website domain name are not IP:

• Company and business names exist because ASIC (under the Corporations Act 2001 and Business Names Registration Act 2011) require registration of these entities before they can legally operate in Australia.

• Domain names are simply a licence to use a particular address; they aren’t property.

The Corporations Act, the Business Names Registration Act and domain name registration don’t provide any IP protection for names; however, they are still important for your business to protect as they form part of your brand identity and reputation.  If you want exclusive rights to these, you should consider protecting them with a trade mark.

 

Intellectual property and employees

 

Your employees should have an understanding of how to manage IP rights in your business.

If an employee creates something new, they may not be aware that the IP actually belongs to their employer.

Having a confidentiality agreement for staff and contractors can also protect you in the event of having to prove a breach of your IP.

 

Further help:

Read more information on auditing your IP on the IP Australia website

For the latest news and resource information about patent and trademark law in Australia visit the Institute of Patent and Trade Mark Attorneys of Australia website

For more detail on copyright issues visit the Australian Copyright Council

If you would like to discuss any of the issues raised in this article, please contact us on (07) 3023 4800 or at mail@marshpartners.com.au.

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