Intellectual Property

Intellectual Property

Intellectual Property (IP) is a term that describes the application of the mind to developing something novel. IP can exist in many forms: a new invention, formula, computer code, brand, design or artistic creation.

IP is often the most valuable part of a business. It needs to be well managed and protected – particularly at business inception, but also in the later stages of the business cycle.

Our intellectual property lawyers Perth can assist you in protecting and managing your IP assets. We will refer you to specialised attorneys where appropriate.

Types of intellectual property law include:

  1. Copyright;
  2. Patent;
  3. Trade mark; and
  4. Design.

Copyright

Copyright protects the original expression of ideas, not the ideas themselves. Copyright is automatic in Australia – the moment an idea or creative concept is documented, on paper or electronically, it is automatically protected by copyright. Copyright safeguards original “literary works” of art and literature, music, films, sound recordings, broadcasts and computer programs from copying and certain other uses.

Copyright protection is provided under the Copyright Act 1968 and gives you exclusive rights to license others in regard to copying your work, performing it in public, broadcasting it, publishing it and making an adaptation of the work. Rights vary according to the nature of the work and whether or not it has been published.

Patent

A patent is a right that is granted for any substance, device, method or process that is novel, useful and inventive. A patent is legally enforceable and gives you (the owner) exclusive rights to commercially exploit the invention for the life of the patent. Patents provide particularly effective protection in the case of the invention of new technology that will lead to a product, composition or process with significant long-term commercial gain. When properly protected and managed, patents can be valuable commercial assets that provide significant competitive advantages.

If you demonstrate, sell or discuss your invention in public before you file a patent application, it could be described as being in the public domain and hence not patentable. For this reason, it is essential that you enter into confidentiality agreements with all parties before you disclose the idea to them.

Patent law is highly technical and specialised. Our intellectual property lawyers can refer you to experienced patent attorneys.

Trade mark

A trade mark is a right that is granted for a letter, number, word, phrase, sound, smell, shape, logo, picture and/or aspect of packaging.  It is used to distinguish the goods and services of one trader from those of another.  A registered trade mark is legally enforceable and gives you (the owner) exclusive rights to commercially use, licence or sell it for the goods and services that it is registered under in a particular jurisdiction.

A trade mark can be your most valuable marketing tool. The public identifies a certain quality, reputation and image with goods and services bearing a trade mark. The more successful your business the more valuable the trade mark becomes.

It is not necessary to register a trade mark to obtain some rights to it. You do not have to register your trade mark in order to use it. The symbol TM can be used with a trade mark at any time. Trade marks that are not registered may be protected under the common law and enforced using the provisions of the Competition and Consumer Act 2010 and other state based fair trading legislation. However, protecting your trade mark without the benefit of registration will likely be more difficult and expensive.

Design

Design refers to the features of shape, configuration, pattern or ornamentation which, when applied to a product, gives the product a unique visual appearance. The commercial value in registering a design lies in the exclusive and legally enforceable rights you receive with respect to the design after it is examined and certified.

A design can be registered in Australia provided it is both:

  1. ‘new’ – meaning it must not be identical to any design previously disclosed anywhere in the world (including Australia); and
  2. ‘distinctive’ – meaning it must not be substantially similar in overall impression to any design previously published anywhere in the world (including Australia).

Commercialisation

Commercialisation is the process of getting your intellectual proeprty to market. There are many different issues to consider when commercialising in Australia and internationally. First and foremost, it is crucial that you have the appropriate protection in place. For example, suitable confidentiality agreements with all parties before you disclose the IP. Our intellectual property lawyers are experienced in drafting and negotiating confidentiality and rollout agreements.

Licensing is a common strategy to commercialise intellectual property. IP licensing gives the licensee the right to use (but not own) the copyright, patent, trade mark, design, technology, technical know-how or specific marketing skills to their advantage. They can use the IP right for a defined purpose, in a defined territory, for an agreed period of time. The licensee isn’t paying for a product, they are paying for access to legal exclusivity. There are different types of licensing available. A franchise is a form of licence, while assignment is different again because it is the outright sale of IP.

An example of our intellectual property lawyers’ work includes advising a PHD student in relation to her ownership rights with respect to IP created by her in the course of her research for her masters thesis. We also prepared a confidentiality deed to be used during the presentation of her research to third parties. Tertiary institutions are keen to commercialise IP that belongs to the university. It is therefore essential to have a customised agreement clearly setting out who owns the IP.

Clients seek the expertise of our Perth intellectual property lawyers because we can be relied upon to identify, secure and protect their valuable intangible assets. Our goal is to help protect your intellectual property by putting in place the right documentation to maximise the value derived from commercialisation.

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