What is IP?

IP Phrase Book

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The following glossary contains a list of definitions to explain intellectual property and related terms.

Attorney

Patent and trade mark attorneys are experienced professionals who can assist clients to protect and exploit their IP rights.

Automatic rights

In Australia, copyright and circuit layout rights are automatic rights. These rights come into effect at the moment of creation. No formal registration is necessary to protect these IP rights.

Business name

A name under which a business operates. Business name registration provides a means of identifying the owners of the business and is obtained under state or territory legislation. Registration of a business name does not provide proprietary rights.

Claims

Concise written statements that define the invention covered by the patent application. What falls within that definition is protected by the patent. Anything outside the claims will not be protected.

Commercialisation

Commercialisation is planning how to take a good idea to the marketplace. It involves working the idea into a business plan, evaluation of protection options and considering how to market and distribute the finished product.

Common law trade mark

An unregistered trade mark, essentially an IP right acquired by use in trade, and forming part of the goodwill of a business.

Company name

The name ascribed to a corporate entity incorporated within the Commonwealth of Australia. This may not necessarily be the ‘business name’ that the company trades under. An entity may trade under its company name without having a registered business name.

Confidential information

Information and material of commercial or personal value kept secret from the general public.

Confidentiality agreement

An agreement between a person possessing confidential information and the person to whom that confidential information will be disclosed.

Copyright

Copyright protects the original expression of ideas, not the ideas themselves. It comes into existence automatically and gives you the right to control and exploit the copying of your original works of art, literature, music, films, broadcasts and computer programs for a period of 70 years. The copyright notice © generally indicates that the work is protected and identifies the copyright owner, although it is not necessary to display this notice for copyright to subsist.

Design registration

Design registration protects the way manufactured products look. Design refers to the features of shape, configuration, pattern or ornamentation, which can be judged by the eye in a finished product.

Domain name

A domain name is the unique name that corresponds with an Internet protocol address. It is often easy and intuitive to remember. For example, IP Australia’s domain name is www.ipaustralia.gov.au (.gov = government, .au = Australia).

Grace period (patents)

This means the period before the filing of a patent application in which, in certain circumstances, public disclosure of an invention will not affect the validity of a subsequent patent application (in Australia a complete application must be filed within 12 months of the disclosure but where a grace period is provided in other countries, the time allowed and other conditions may be different).

Infringement

Infringement occurs when someone consciously or inadvertently uses IP without permission.

Innovation patent

An innovation patent is a form of protection available in Australia for comparatively minor innovations and improvements. Protection is available for up to eight years. For suitable subject matter, innovation patents require only novelty and an ‘innovative step’ to be valid.

Intellectual property (IP)

Intellectual property is property generated through intellectual or creative activity. Types of IP include: patents, Trade marks, designs, confidential information, trade secrets, copyright, circuit layout rights and plant breeder’s rights.

International patent application

Under the Patent Cooperation Treaty (PCT) it is possible to file for registration of a patent in multiple countries concurrently. It is necessary to select the relevant countries for the application and lodge it with IP Australia.

Inventive step

Concept in IP law which means that the invention being patented is not obvious to someone with the knowledge and experience in the particular technological field of the invention, when compared with the prior art base before the priority date.

License

To grant authoritative permission to use, but not own, IP rights, as prescribed in a licensing agreement. Franchising agreements are often arrangements where one party licenses the IP from another.

Opposition

A procedure whereby an application for IP protection can be challenged by a third party and ruled on by IP Australia. Opposition proceedings can lead to the refusal of an application to proceed to registration.

Passing off (Trade marks)

Where a business which has been using an unregistered trade mark for a period of time has developed a certain reputation or goodwill in the business and another business sells goods or provides services under the same or similar trade mark without permission from the first business, possibly resulting in the tort of passing off.

Patent

An exclusive right to exploit an invention commercially, granted for a limited term in return for public disclosure of the invention.

Plant breeder’s rights

Plant breeder’s rights are used to protect new varieties of plants by giving exclusive commercial rights to market a new variety or its associated reproductive material.

Prior art

Is any body of knowledge relating to research that exists prior to the completion of research or filing of a patent application. It can include existing patents or designs, printed publications, or publicly available research from any country.

Priority date

Concept in IP law whereby the first to take a particular action is entitled to a right that excludes others who may have innovated later. For example, in most countries, if two people apply independently for a patent on the same invention, the earlier application has priority and so can prevent the second succeeding. Also public disclosures made before the priority date are relevant for determining whether an invention is new and inventive for patents and new and distinctive designs.

Provisional patent application

An application for a patent that is made to secure a priority date only. It gives no rights against infringers, but allows the priority date to be preserved for patent applications (in Australia and most other countries or an international application) made within 12 months for the same invention. This allows additional time for the applicant to determine if the commercial potential of the invention warrants continuing the patenting process.

Registered rights

Include patents, Trade marks, designs and plant breeder’s rights. Each registered right gives the owner certain enforceable rights, depending on the type of protection.

Trade mark

A trade mark is a sign used commercially to distinguish goods and/or services of one trader from those of another. It can be a letter, number, word, colour, phrase, sound, smell, logo, shape, picture, aspect of packaging or any combination of these.

A registered trade mark gives the owner the exclusive legal right to use, license or sell it within Australia (and any other country in which it is registered) for the goods and services for which it is registered. The ® can be applied to registered Trade marks. The TM can be used for unregistered Trade marks.

Trade mark infringement

Where a business has registered a trade mark and another business sells goods or provides services under the same or similar trade mark without permission from the first business, possibly resulting in an infringement of the registered trade mark.

Trade secret

Information known to a trader and kept out of the public domain for business advantage. The law protects against damage done to a business through unauthorised disclosure of trade secrets, but not against independent discovery of the trade secret where no breach of confidence has occurred.