IP reform - What you need to know

2 Jan 2013

Australia's intellectual property (IP) system has had its biggest overhaul in twenty years. The Intellectual Property Laws Amendment (Raising the Bar) Act comes into full effect on 15 April 2013. With changes to patents, trade marks, copyright, designs and plant breeder's rights, how will the reforms impact you. Here's a short checklist of the big ticket items.

1. Stronger patents

Weak patents don't do anyone favours. Apart from discouraging genuine innovation, they also create too much legal uncertainty - never helpful for attracting investment.

The new laws raise the standard required for an invention to be granted a patent. So while it may be a little a harder to patent your invention, once it's granted you'll have a clearer picture of your rights.

Exporters also stand to benefit because our higher standards are now in line with major trading partners such the USA, Japan and Europe. This should give exporters greater confidence that they'll be able to get the protection they need where they need it.

2. Help for researchers

Researchers can now experiment with ways to improve existing inventions without having to worry about infringing an existing patent. This is the first time researchers have had the benefit of clear guidelines around what they can and can't do. This aspect of the new laws came into force on 15 April 2012.

3. Less delays and a simpler IP system

Time is money, and as with any legal process, long drawn out proceedings tend to favour those with deep pockets. This isn't necessarily a good thing. For many cash starved SMEs, IP is their only competitive advantage.

The reforms stop people gaming the IP system through reduced delays and complexity. For example, third parties have been able to oppose the grant of a patent or trade mark. Current rules allow long delays in resolving those disputes. If one side is much bigger than the other, they can cause significant problems for their opponent by denying them effective use of their IP. The new rules force these disputes to be resolved within much more reasonable timeframes.

4. Better enforcement

Owners of a brand will benefit from increased penalties for counterfeiting and stronger powers for customs to seize fake imports. The maximum penalty for trade mark infringement is currently two year's imprisonment - this will rise to five years. The reforms also allow courts to award exemplary damages against the counterfeiter. If penalties are too low counterfeiters regard the fines as just "the cost of doing business". Exemplary damages should help deter counterfeiters from stealing valuable IP.

Also for the first time, trade marks (and designs) matters can be taken to the Federal Magistrates' Court, rather than the more expensive Federal Court. Lowering the cost of enforcement provides IP rights holders with increased options to protect their rights.

It will also be a lot easier for brand owners to determine the true identity of dodgy importers. Previously, importers of counterfeit goods have been able to delay withholding vital information. Now, when goods are seized under a customs "Notice of Objection" they must come out of hiding and formally request for their goods to be returned.

Why bother with intellectual property?

Australia is a lucky country. However, for a sustainable and prosperous future, we need to innovate. Our IP system is essential for improving productivity, and is a cornerstone of a strong and sustainable economy. As our society changes we need to ensure our intellectual property system strikes the right balance between public and private interests. It's never perfect, but our laws should operate for the benefit of all.