Intellectual property - or IP - is property of the mind or intellect. In the case of a business, this also means proprietary knowledge.
It covers a range of legal rights that can arise through either statute or common law.
On this page:
Why protect your intellectual property?
Types of IP
Protecting your IP
Putting a strategy in place
Contact an IP expert
Why protect your intellectual property?
The globalisation of many markets has led to an increasingly competitive environment. Most companies are striving to find and sustain a competitive advantage - something that will satisfy customer needs better - and more profitably - than the competition.
Often it is a company’s intellectual property – IP - that sets them apart in the market place and unless it is protected your innovation could be copied by a competitor – taking market share and profits that could have been yours.
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Types of IP
These types of intellectual property can be protected:
- inventions
- devices
- industrial processes
- business/trading name
- logo - words and/or symbols
- pictures/sounds/smells or a combination of these that helps distinguish your products and services from those of other traders
- designs
- literary or artistic works
- plans
- new plant varieties
- original circuit layouts
- goodwill.
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Protecting your IP
Your IP protection strategy will depend on the type of asset you have identified as intellectual property. Types of IP protection you may want to consider include:
Patents
Patents are generally viewed as the strongest form of protection for practical invention, devices and industrial processes. The owner of the patent has the exclusive right to exploit the invention covered by the patent.
Trade marks
A trade mark is the name, logo - words or symbols, pictures, sounds, smells or a combination of these that helps distinguish your products and services from those of other traders. For this reason, a trade mark can be one of a company’s most important assets, especially as it can potentially last forever.
Trade marks can be used prior to registration but registering gives you legal monopoly of that trade mark for your goods and services within Australia.
If you are involved in exporting your products overseas, it is important to consider protecting your trade mark in overseas markets.
Registered designs
Any new design for an item, or a new pattern applied to that item, can be registered as a design, the protection for which is based on visual appearance.
Copyright
Copyright protects original literary or artistic works including most plans, drawings or artworks.
There is no registration procedure for copyright protection - the rights arise automatically on the creation of the work.
Copyright only protects the work in the particular form expressed, not the idea behind the work. It is no substitute for patent protection for useful ideas.
Plant breeder’s rights
Any new, distinct and homogeneous varieties of plants can be protected and the owner of the right can gain control of the right to reproduce the plant.
Original circuit layouts
Original circuit layouts – ie 3-dimensional configuration of electronic circuits - in integrated circuit products may be protected by the Circuits Layouts Act 1989 in a similar fashion to copyright.
This is an automatic, limited right and again is no substitute for patent protection.
Confidentiality/trade secrets
This includes know-how and other confidential or proprietary information.
Goodwill
The Trade Practices Act 1975 and common law rights against passing off also help you to protect your goodwill and its use from misleading or deceptive conduct by other traders.
Licensing
Patents, trade marks and registered designs are forms of property that may give rise to opportunities for leasing arrangements - licences.
By licensing the right to use your intellectual property you can maintain ownership of the rights and collect royalties from the users.
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Putting a strategy in place
IP management is vital in managing a business and should be considered an important part of your business strategy. To begin the process of protecting your IP, follow these steps:
- Identify all IP associated with your business - eg literary works, designs, artwork, graphics, logos, plans, processes, etc.
- Check that you own each item of IP used in your business or that you have the right to use it.
- Identify a dollar value for each item of IP - you may require experts to assist with this task.
- Identify unregistered IP and give each a dollar value – you may require experts to assist with this task.
- Identify other valuable assets such as client lists and corporate knowledge.
- Conduct a search to see if your IP is already claimed by another individual or business - before going to the expense of engaging an IP expert, you might be interested to see what you can find out yourself. There are search engines specifically covering IP.
- If you have decided to protect your business IP, it is best to consult with an expert on the most appropriate form of protection - they will also conduct an official search on the patent, trade mark and design databases to ensure your ideas are new and to avoid infringing the rights of others.
- List your registered IP with other assets on the company balance sheet - this will give a more realistic representation of the value of the business.
- Identify key staff involved in developing, maintaining and protecting your IP - educate them on the nature of IP, how to protect it and their responsibilities, and consider obtaining signed agreements relating to confidentiality and competition.
- Consider insuring your IP against infringement - it is worthwhile considering an economic analysis of the value of insuring your IP against others infringing it, and also whether your business is insured against infringing someone else’s IP. While industry opinion is that insuring IP is extremely uncommon and often expensive, there may be opportunities to establish alliances with companies of international standing so that in the event of infringement there may be the opportunity of assistance from an interested party with deep pockets.
- Make effective trade marks the core of your brand and image building strategy, and keep them consistent - make sure your target market knows of the benefits of your offer, and make sure your messages and delivery are consistent.
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Contact an IP expert
Intellectual property is a complex subject and requires the input of an expert, such as a qualified patent attorney.
The Institute of Patent and Trade Mark Attorneys of Australia - IPTA - can assist and advise regarding selection of a patent attorney.
The Professional Standards Board for Patent & Trade Mark Attorneys will receive any complaints about professional service delivery.
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More information
On this site
Licensing and regulation
Other websites
Australian Copyright Council
IP search engines
IBM Patent Network
European Patent Office
Intellectual Property Office – UK
The Canadian Patent Database
US Patent Bibliographic Database
The Japanese Patent Office
IP Australia Database
Some on-line services require registration and subscription - such as QPAT.
Downloads
Intellectual property checklist (PDF 484KB) - BizFacts