Intellectual Property - What is it and what does it mean to you?
By Damon Henshaw | Wednesday, December 5, 2012
Several landmark intellectual property disputes have hit the press recently. The Apple Vs Samsung case is one that almost everyone heard of. Why? Because it brought intellectual property law into the home: the case dealt with the iPhone. People gained a sense there had been some misappropriation of Apple’s property and, of course, there was big money involved.
This is exactly what intellectual property is all about – the ability to secure the legal rights to innovations that have commercial value. Fundamentally, the entire IP rights system is intended to encourage innovators and enhance economic activity. It provides limited monopoly rights to protect the work and investment made by the innovators.
IP rights are everywhere, from brands on supermarket shelves, domain names, and unique product designs, to software and engineering innovations.
Businesses are increasingly factoring intellectual property into their business strategy. By running an IP rights protection program parallel to their business plan and market objectives, these companies can achieve significant financial outcomes and business growth.
What is intellectual property?
Intellectual property (IP) refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce.
All businesses have intellectual property, be it in the form of a registered business name, a registered trade mark, copyright in signage, a domain name, website content, client lists, apps, system software, innovations and inventions, know how, trade secrets.
All of these forms of intellectual property are important and can play a role in the running of a business, but the most valuable form of IP rights are the monopoly rights that can be used to put a protective fence around your company’s assets.
These IP rights are patent, trade mark and design registrations.
A design registration protects the appearance of a product – the way it looks to the naked eye – so the scope of registration is very specific.
The humble design registration is often discredited as being too limited to be of much value. However, if a design is distinctive, a design registration can provide one of the simplest mechanisms for stopping competitors selling imitation products. Obviously, if sufficient changes are made to alter the overall appearance of the product, then the design registration may not cover such variations.
A good example of a well known design that is registered is the Dyson vacuum cleaner. An ideal design registration is one that covers a particular product that, by its design, must have a particular shape.
Trade mark registration
A trade mark can be a brand, a non-descriptive word or phrase, a colour, scent or sound – basically, it must distinguish your goods or services from those of other traders.
There are thousands of visual trade marks that are instantly recognisable, from the golden arches to the Nike tick, but other types of trade marks include the O'Brien glass jingle and the Cadbury's purple for chocolates.
A trade mark registration gives its owner the exclusive right to use the mark in relation to a particular class of goods and services. It can be used to stop other people from using substantially identical or deceptively similar trade marks for the same class of goods or services.
Patents are used to protect inventive or innovative subject matter. Patents can cover products, manufacturing processes, software, chemical compositions – essentially anything embodying a non-trivial improvement.
There are two types of patents in Australia, an innovation patent and a standard patent. A standard patent lasts 20 years and has a fairly high inventiveness requirement.
Innovation patents have a lower inventiveness requirement and are faster and cheaper to secure, which makes them a valuable business tool in stopping infringers. They only have an 8-year term, but can run parallel with a standard patent application until the full 20 year term patent is granted.
To satisfy the innovative requirements, the invention simply needs to have a feature of difference over what has been done before, and that feature needs to substantially contribute to the way the invention operates.
The triple threat
A product can embody one or more of the above types of protection, or possibly all three. Both the iPhone and Samsung products, for example, represent a triple threat where trade marks are apparent, where patents protect the functionality of the products, and design registrations protect distinctive aspects of the visual appearance of the phones.
This represents a comprehensive style of protection that covers all aspects of the product.
From a business point of view, it may not always be practical to cover all possible aspects of any particular product. A decision needs to be made at an early stage as to which form of protection is most suitable.
An important issue to remember is that patent and design applications generally need to be filed before any public disclosure, so the decision should be made around the time of prototyping, if not before.
If you are interested in protecting the IP assets of your business, a professional patent and trade mark attorney should be engaged to advise and assist with the development of an IP strategy to suit your business.
This article was first published by Western Sydney Business Access, December 2012
This legal briefing was written in 2012 and may not reflect the latest legal developments. We encourage you to contact us for up-to-date advice for your particular circumstances.