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Types of Intellectual Property (IP)

Intellectual property represents all rights and entitlements obtained from mental or intellectual activity. This can come in the form of an invention, trade mark, original design or the practical application of a good idea.

As international business markets become increasingly competitive, intellectual property becomes important for businesses to differentiate themselves from competitors in order to remain successful.

Patents


Protect the use of ideas or information either in products or processes. Holds monopoly for:

Standard Patent – 20 years: This applies to inventions or in other words the creation of a “certain thing”; and
Innovation Patent – 8 years: This applies to innovative creations or in other words the creation of “the process of how to do certain things”.
Patents give effective protection if you have invented new technology that will lead to a product, composition or process with significant long-term commercial gain.

 

Advantages:

1. 20 year monopoly (up to 25 years for pharmaceutical products).

2. Can be strong form of protection.

3. Property can be traded (cross-licensing, sales, assignment) and also partly traded.

4. Can be used as an asset to raise money against.

5. Can be used as litigation ‘weapon’ against someone.

 

Disadvantages:

1. Costly to file.

2. Only as strong as its drafting and its ability to be enforced in Court.

3. Enforcement in Court is expensive.

4. There is a need for constant vigilance to protect effectively and to enforce in Court if need be.

5. Must publish the invention during the monopoly period, others can use this information to advance their position.

6. Once monopoly period expires the invention/innovation is in public domain.

7. No guarantee of validity.

 Trademarks


Are “Signs” such as names, words and logos that businesses use to identify themselves and the goods and services they provide.

Perpetually renewable for successive periods of 10 years.

The difference between trade marks, business, company and domain names sometimes causes confusion, refer to “What is NOT Intellectual Property”. Registration of a business, company or domain name does not in itself give you any proprietary rights, only a trademark does.

A trademark is used to distinguish the goods or services of one trader from those of other traders. Registration of a trade mark gives the registered owner exclusive use of the trade mark throughout Australia.

Advantages:

1. Can create a monopoly-like position.

2. No time limitation if renewed and used correctly.

3. Can be strong and effective protection.

4. Property can be traded.

5. Can be used as a strategy to build business in new markets i.e. franchising.

6. Can be used as back up to other IP protection.

 
Disadvantages:

1. Others can have the same mark (for example their prior use of the trademark before your registration or honest concurrent use).

2. Can be lost if it becomes generic.

3. Can be weak protection.

4. Requires constant vigilance to enforce effectively.

5. Limited to specified goods.

6. Can be lost if not used.

Designs


Protect the appearance of, or overall look of a product. A monopoly is granted over such features as ornamentation, pattern, shape and configuration.

Maximum period of 15 years of protection.

Advantages:

1. There is statutory protection from infringement.

2. There is a deterrent value to registration of the design.

3. Monopoly protection for up to 16 years.

4. Property in design can be transferred.


Disadvantages:

1. Protection limited by specification.

2. Protection only as good as drafting.

3. Can be costly.


Copyright


The exclusive right to do, or to authorise another person to do, certain acts in relation to the work or subject matter.

Copyright subsists in original literary works, original dramatic works, original music works, original artistic works, sound recordings, cinematographic films, television, sound broadcasts and published editions of works.

Unlike patents, copyright does not protect the idea itself but the words (or otherwise) that express the idea.

Protection – life of author plus 70 years.

Advantages:

1. Automatic.

2. No cost for protection.

3. Limited protection can be enough with some technology/industries.

4. Can be early backup for other IP protection.

5. Long length of time.

 
Disadvantages:

1. Limited to very little protection.

2. Costly to enforce in Court.

3. Needs constant vigilance.

4. Matter not always visible i.e. software code, therefore difficult to monitor.

5. No one is directly responsible for it so it can be forgotten.

 

Confidential Information


Not protected by any specific legislation in AU and is not able to be registered.

Information must have the necessary quality of confidence about it and the information must have been parted in circumstances where it was clear that the person disclosing the information wanted it to remain confidential.

Examples:

Trade secrets
Industrial processes
Formulas
Recipes
Engineering design drawings
Customers and supply lists
Television scripts
Other unpublished works
 

Advantages:

1. Can be effective

2. No statutory time limit

Disadvantages:

1. Can be lost with one publication or revelation

2. Needs strong business processes, staff commitment etc