Editor’s note: We often jump straight into the minutia of intellectual property affairs on this page without sufficient regard for those of you who might just be starting out in business. So here is a primer on intellectual property essentials.
What is intellectual property (IP)? For starters, it is no single thing. Rather, it is a collective term embracing a number of different rights, all of which can have significant impact in business and commerce on a day-to-day basis. The principal rights that make up IP are patents, registered designs, trade marks, copyright and plant breeder’s rights. All of these are governed by Federal, rather than State, legislation, which determines how they can be used and for how long they may last.
Patents can protect new innovation in products and processes of all descriptions; from products of pin-head size or smaller to ocean liners or larger, life-saving drugs, chemicals, processes for making all of these, processes for doing other things, such as exploration for oil and minerals, even methods for doing business. A patent can last for a maximum of 20 years and when it has expired, others are free to use the invention for themselves.
Registered designs can protect a new appearance of a product; a computer keyboard or mobile phone, for example. A design registration can last for a maximum of 10 years and, as with patents, the design can be used by others when the registration has expired.
Trade marks can protect names and logos for products and services of all kinds. Qantas, its name and its flying kangaroo logo are examples of very well known trade marks. Unlike patents and registered designs, a trade mark right can last indefinitely, basically provided it remains in use. Trade marks may represent some of the major assets of a business.
Copyright can protect all sorts of written works, artistic works, films, plays, musical works. However, it can also extend beyond the traditional areas where readers would expect copyright to exist, to more commercial areas, such as computer software and building plans. Although copyright does not last indefinitely, it has an extensive life of 70+ years.
Plant breeder’s rights
Plant breeder’s rights (sometimes referred to as PBR) can protect new and distinct breeds of plant for horticultural and agricultural use, and fruit production. The maximum term is 20 or 25 years, depending on the variety of plant. Although a relative newcomer to the IP regime, extensive use is now made of PBRs – just have a look in your local nursery.
The term “intellectual property” did not come into widespread use until the 1970s. Before then it was more commonly known as industrial property and at that time it was applied mainly to patents, designs and trade marks, perhaps reflecting the importance of these in the development of industry and commerce from the time of the industrial revolution. Copyright, then, was viewed as being of more relevance to the arts than to business.
Other things are also regarded as falling within the umbrella of IP. Trade secrets and confidential information are often referred to as part of the IP of a business, even though they are not conventionally a property right. A well-known person – a famous sportsperson, for example – may even regard their fame as representing their own IP and exploit this to great advantage (the earnings of certain sports stars from endorsements have but perhaps it doesn’t really matter. It’s a convenient name under which to group these things and it is something which people seem to understand – sort of…
Perhaps, then, IP can best be categorised by what it does rather than what it is. In terms of a business, it can provide at least a degree of exclusivity to give a commercial or economic advantage against competitors.
Ray Hind is a Partner at intellectual property firm Davies Collison Cave. www.davies.com.au
The information contained in this article is not legal advice. If you do have a legal enquiry you should talk to a Solicitor or Trade Mark Attorney before making a decision about what to do.