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Note from August 25 2021, the innovation patent will cease to exist. After this date, you can only file a divisional innovation patent if it is based on a previously filed patent. Read more about this change in our article.

Intellectual property (IP) is an intangible asset. It cannot be seen, touched, picked up or held, but its value is estimated to account for over two-thirds of all corporate value. Therefore, it is essential you know what IP is and how to protect what you have created. This article explains six things you might not know about IP.  

1. IP is an Umbrella Term

IP refers to the new ideas you have created. It includes:

  • copyright: original works of authorship, including:
    • literary, artistic, musical and dramatic works;
    • audiovisual and sound recordings; and
    • source codes in computer software programs;
  • patents: devices, substances, methods or processes that are novel, inventive and useful;
  • trade marks: words, phrases, symbols and designs that distinguish a product or service from others;
  • designs: how a product looks regarding shape, pattern and configuration; and
  • plant breeders’ rights: new varieties of plant species.

Therefore, protecting your IP involves identifying which category of IP rights apply to the work.

2. Not All IP is Automatically Protected

Copyright provides automatic protection. This means an author does not need to register or apply to safeguard their literary, artistic, musical or dramatic work. Copyright, however, is only enforceable for 70 years after the author dies.

On the other hand, patents, trade marks, designs and plant breeders’ rights need to be registered with IP Australia. The length of time you have to enforce your rights varies. For example:

  • trade marks can be registered for 10 years, then renewed every 10 years indefinitely;
  • designs can be registered for five years, then renewed for a further five years;
  • standard patents provide up to 20 years protection, and innovation patents provide up to 8 years protection but you must renew the protection every year; and
  • plant breeders’ rights involve 20 years protection for most plant species and 25 years for grapevines.

Therefore, you will need to check whether you need to register your rights and ensure those registrations do not lapse.

3. You May Have Unregistered Trade Mark Rights

Enforcing an unregistered trade mark is possible. To do this, you need to prove that you have established a ‘reputation’ by using your trade mark. 

It is important to note, however, that the protection of unregistered trade marks is limited to areas where you have established that reputation. On the other hand, registered trade marks have national protection.

4. You Can Remove Unused Trade Marks

You may be able to remove a competitor’s trade mark from the register if they are no longer using it. To do this, you need to prove that the owner of the trade mark:

  • had, in good faith, no intention to use, assign or authorise the use of the trade mark to someone else in Australia; or
  • has not used the trade mark, in good faith, for a continued period of three years. It is important to note that this only applies five years from the filing date.

5. Copyright Does Not Protect Ideas

Copyright protection does not extend to ideas themselves. Instead, it refers to the expression of the idea. For example, a person is not infringing your copyright if they steal your idea and develop a similar software program without copying the source code.

However, you may be able to register a patent for the software. This gives you a commercial monopoly if your work:

  • is a manner of manufacture;
  • is novel;
  • involves an inventive step;
  • is useful; and
  • has not previously been used, even in secret.

Accordingly, to receive patent protection, you have to submit an application to IP Australia.

6. There is No Such Thing as an International Patent

Lodging a patent application with IP Australia does not give you international protection. Your IP rights are not protected overseas unless you apply for international patent protection. There are two ways of doing this:

  1. lodge an individual patent application with each country; or
  2. register through the patent cooperation treaty (PCT).

A PCT application is advantageous because:

  • you get an additional 18 months to pay the fee for foreign applications;
  • you get extra time to develop, evaluate and market your invention for licensing; and
  • it simplifies the patent prosecution process.

Key Takeaways

IP is one of your business’ most valuable assets. Therefore, you should seek protection under Australia’s IP law framework. Remember that you do not receive automatic protection with some IP, such as patents and trade marks. You may also need to apply to other countries if you want international patent protection.

If you have questions about protecting and enforcing your IP rights, contact LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.


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