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This is the second part of a two part article explaining the different types of intellectual property (IP). You can find the first part here.

Every business will own some form of IP, which is a broad term given to creations or property of your mind. Protecting your IP is one of the keys to growing and propelling your business’ success, as it is often what will set your business apart from competitors. Protecting your IP early on will also help retain and increase the value of these assets, which is an important factor when attracting investors, setting up a franchise, selling your business, or otherwise expanding your business somehow.

You should first consider which types of IP define your business and, therefore, should be protected to ensure you have an exclusive right to that creation. This article will consider the most common types of IP and how these can be protected.

Trade Secrets

A trade secret is any confidential information, processes, and methods that give your business a competitive advantage. This may cover a broad range of information, including:

  • product formulas;
  • manufacturing methods; and
  • business strategies.

For example, trade secrets can be an effective way of protecting an invention without patent protection because you do not have to publicly reveal any information about the invention.

Unlike the IP protections discussed below, trade secrets may also protect ideas and information that you have not yet documented.

Some of the world’s most well-known trade secrets include the following:

  • recipe for KFC’s 11 herbs and spices;
  • recipe for Coca Cola;
  • method for choosing The New York Times Best Sellers List; and
  • search algorithm for Google.

Trade secrets do not need to be registered and are protected indefinitely as long as you keep them a secret. However, you will need to take steps to ensure they are kept confidential within the business and not released to the public. This is commonly through having well-drafted contracts in place, such as a non-disclosure agreement (NDA) and employment agreement.

For example, it may be appropriate to use an NDA when discussing your business plans with third parties, such as investors, manufacturers, and developers. The NDA should state that each party will not disclose or misuse any confidential information that they are provided.

If you have employees, your employment agreement should contain well-drafted and enforceable confidentiality and non-compete or restraint of trade clauses. These clauses will, broadly speaking, prevent employees from revealing any confidential information about the business and using this information to compete with your business. It is also prudent to ensure that only employees who need to know about a trade secret know about it.

Patents

A patent provides you with an exclusive right over any device, substance, method, or process that is new and inventive. This means that third parties cannot make, sell, use, or otherwise commercialise your invention without your permission. A patent can apply to a variety of fields, including:

  • engineering;
  • biotechnology;
  • science;
  • pharmaceuticals;
  • cosmetics;
  • foods; and
  • software.

If your business has developed a new and innovative product or service, then registering a patent may be the best way to prevent others from exploiting this. There are certain threshold requirements you will need to satisfy to qualify for patent registration, which generally requires that the invention:

  • is patentable subject matter;
  • is new;
  • possesses an inventive or innovative step; and
  • is capable of industrial application.

It is also essential that you have not publicly disclosed the invention before you apply for a patent.

Examples of some famous inventions that have been protected with a patent include:

  • The lightbulb (1878);
  • Bluetooth (1994); and
  • Google PageRank (1998).

In Australia, you can apply for a patent by filing the relevant application with IP Australia. The application must provide a clear and complete disclosure of your invention, including specific drawings and descriptions.

Depending on the complexity of your invention and which patent you apply for, the entire registration process can take anywhere from a few months to a few years. However, a patent is only valid for a set period of time after an application is successful and granted, determined by the registered type of patent.

Designs

A design registration protects the visual appearance of a product. This is in contrast to a patent that protects the functionality of a product. However, similar to patents, a design must:

  • be new and inventive; and
  • not have been disclosed publicly.

Designs can protect the shape, configuration, pattern, or ornamentation of a product and can apply to a wide range of products, including clothing, jewellery, and furniture. The LEGO brick, for example, is a famous example of a product that was registered as a design.

If you meet the eligibility requirements, you can apply for a design registration with IP Australia. The application must include drawings and images that demonstrate your design’s visual features and a description of the unique aspects of your design.

Once registered, you will have the exclusive right to use, license, and sell your design in Australia for five years. You then have an option to renew the registration for a further five years (being 10 years in total).

Registration alone, however, does not provide you with enforcement rights. If you want to enforce your registered design against third parties, it must also be certified by IP Australia. This is a separate step to registration and is optional. To have a design certified, you must request an examination, at which stage the examiner will assess whether the design is new and distinctive. If granted, you will have the right to stop third parties from using your design without your permission.

Key Takeaways

Your IP may be some of the most valuable assets that your business will own. You will first need to identify what types of IP your business owns and then consider what steps you need to take to ensure they are protected. This will ensure that your IP retains its value which will, in turn, propel your business’ growth and success. If you have any questions about the types of IP or about protecting your IP, contact LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.

Frequently Asked Questions

Can I register a trade secret?

You cannot register a trade secret. They are protected by their secrecy, and you should ensure you take all of the necessary steps to prevent your trade secret from becoming public.

What is the difference between a patent and a design registration?

Among other things, a key difference between patents and design registrations is that patents protect the functionality of a product, while design registration protects the visual appearance of a product.

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