Attributes of IP rights
The key attributes of IP rights are that they may be restricted and exclusive, overlapping and contradictory. IP rights also entail the qualities of ownership, transferability, territoriality and volatility.
Exclusive rights
Registered IP rights provide you with exclusive rights. However, they are restricted in both their duration and scope. These limited restrictions comply with the requirements of National Competition Policy, which stipulates that enabling the widest possible availability of competition will have a positive impact on economic growth.
Each IP right has its own restriction in terms of duration. For instance, standard patents last for 20 years, designs for 10 years and copyright for 70 years after the death of the 'author'. Note renewal fees must be paid to ensure patents and designs remain in place for these periods. Trade marks can remain in force indefinitely provided the renewal fees are paid every 10 years.
IP laws protect the innovator while still allowing newcomers to enter and compete in a mature market. For example, patents protect only a specific invention, designs protect only the particular visual appearance of a product, copyright protects only the form of an idea's expression (not the idea itself), and know-how is protected only when it can be shown that there is an obligation of secrecy between relevant parties.
Different rights protect different things
A range of IP rights can be used to protect the same product or service. For example, a product can have patents applying to specific aspects of technology, the product's brand name can be protected by a registered trade mark, the product's appearance can be protected by a registered design and manuals can have copyright protection. These layers of protection can be used in commercially creative ways.
Given that different rights have their own respective purposes and time frames, you need to identify which IP laws would be most appropriate for your commercial purposes. You may need to seek professional advice to achieve the most effective protection.
The more IP rights that can be used to protect a particular product or service, the more resistant your product or service will be to imitation and competition.
For this reason it is important that you take the time to understand the different forms of IP, their relevance and how you can best apply them to your advantage.
Different Countries
Most IP rights are territorial, meaning they have to be dealt with in each new territory where you intend to trade. For example, a patent, trade mark or design granted in Australia is not automatically granted in other countries.
Copyright is the only IP right that is automatically recognised in the global market. All other forms of IP need to be specifically assessed and approved in each country in which you intend to do business.
If you intend to market a product or service in a foreign territory, it is essential that you carefully plan and understand the various IP protection laws operating within those territories as they may be different to the Australian IP system. It is important to ensure that you understand the cost and time implications of the process in each country.
Australia is party to a number of international agreements, which makes it a little easier to apply for rights such as trade marks, patents and designs in other countries.
Ownership
Ownership is based on being able to show that you are the 'author' or 'creator' of the IP. You may also become the owner by having the IP rights assigned to you.
Absolute title to an IP right cannot be guaranteed. While we administer patents, designs and trade marks and have a public register of owners, title is not unequivocally guaranteed by registering a patent, design or a trade mark.
An IP title does not have the same 'indefensibility' quality as does the title to land or other assets. IP is always open to a challenge in court from another person who believes that they can show that certain criteria were not met in the original application process. The best defence against this is proper planning and management.
It is sometimes difficult to establish effective property rights in relation to confidential information. For example, several people may be involved in creating a new product or process. Unless specified by a legally binding agreement, it can be difficult to determine who is the 'author', and hence owner of the various IP components.
The title to secrets and copyright can and should be carefully managed to make dealing with these issues as straightforward as possible. In cases such as these, it may be necessary to seek legal assistance.
It is important that those investing in IP recognise the potential risks and manage these through appropriately structured contracts. The best way to protect ownership may be through warranties and agreements in standard IP contracts.
Transferability
Like any other business asset, IP rights are negotiable and can be used for commercial advantage. As a business tool, IP can be closely linked to market position and this provides the capacity to negotiate the advantage to your benefit.
IP rights can generally be bought, sold, licensed, given away or made freely and widely accessible. How you sell or license your IP is limited only by your business and negotiation skills. Beware however, that there may be tax implications such as stamp duty, capital gains tax and GST.
Last Updated: 12/12/2012
