Intellectual property law is designed to encourage innovation by offering protection to those that develop original designs, processes and formulae. These protections allow them to maintain their competitive advantage and therefore profit from their work. IP Australia is the Australian Government agency that administers intellectual property rights and legislation.
What is intellectual property?
Intellectual property includes patents, copyrights, trademarks, designs and secret processes and formulae. The main requirement is that they be original, and if they satisfy the requirements for intellectual property and they are properly protected, the owner is granted a monopoly by law. This is incredibly important in industries where R&D costs are high and where there is a high risk of failure. Intellectual property law incentivises innovation by preventing other businesses from stealing ideas after they have been proven to work.
Types of intellectual property
- Patents are a right granted by the government to an inventor, giving the owner the right to prevent others from making, using or selling their invention for a limited period of time. To gain a patent, the designs and documentation must be submitted to the Government and generally become available to the public. A patent must generally be new, not obvious and have applicability in some context.
- Copyright gives the creator of intellectual or artistic work exclusive right to it for a limited time. In Australia, all creative works immediately gain copyright. These rights are not administered through IP Australia, like other intellectual property rights, they are instead handled by the Department of Communication & the Arts.
- Industrial design rights are protections for visual designs which are not merely utilitarian - i.e. they cover the shape, colour, pattern, visual identity and configuration that form its aesthetic.
- Plant breeders rights are used to protect a new variety of plant, such as a purpose bred fruit or vegetable variety. These must be novel and distinct from existing varieties.
- Trademarks are identifiable signs or designs which distinguish a particular product or service to a particular provider. While most trademarks would already be copyrighted material prior to registration, trademark registration offers another level of protection and prevents derivative works that might confuse consumers.
- Trade secrets are practices, processes, designs, formulas or information which is not generally known or easy to ascertain, and which allows a business to maintain its competitive advantage. Examples include the recipe for Coca-Cola, or the contents of KFC’s ‘11 herbs and spices’.
What are the drawbacks of protecting IP?
Protecting your intellectual property offers clear advantages by preventing your competitors from using your innovations, however it can be an expensive and time-consuming process. In some cases, competing businesses can create a derivative product or service which offers many of the same benefits without infringing on intellectual property rights.
Intellectual property lawyers are experts in determining the benefits of protecting intellectual property and advise businesses on whether the cost is justified. They are also well-versed in the process and provide businesses with accurate timelines and costs, before guiding them through the intellectual property registration process.