Intellectual Property (IP) refers to the knowledge you have created and wish to exploit. There are several means of protection, depending on the innovation or idea.
The area of IP can be extremely complex so only a brief overview is included for the different areas of protection available.
Registerable Intellectual Property Rights:
- Patents
- Trademarks
- Designs
Unregistered Rights:
Patents
The first thing to understand about patents, and one that is not understood by many people, is that you lodge your patent in the country in which you wish to do business. For example, if I wish to sell into the USA and be protected in that market I do not need to lodge a patent in China to prevent them from making the product. The USA protection prevents anybody from selling into the USA, irrespective of where the product is made.
Provisional Patent (PP)
The most common starting point in the patent process is to lodge a Provisional Patent.
A PP is not normally examined, except perhaps in the case of a dispute of priority date (the date the idea was first thought of and documented in the form of a PP). A PP represents the priority date protection for protection to be commenced and lasts for 12 months. Coverage is for all countries that are signatories to the Patents Co-operation Treaty (PCT). More than 130 countries are included in this coverage including the USA and EU.
The 12 months PP window is aimed at giving the innovator the opportunity to explore the opportunity in more depth and perhaps develop the idea to a better level, thereafter a Complete Patent Specification can be lodged.
Complete Patent Specification and Patents Co-operation Treaty
A Complete Patent Specification is a detailed document that in essence details the “method and apparatus” that is the invention. If it has not been done before it is an essential requirement in succeeding with the granting of a Patent.
Note that it is not possible to patent just an idea. What is required is a knowledge of just how you will achieve the desired outcome.
It is common if you wish to proceed with an invention to move from the Provisional Patent stage to a Complete Patent Specification or a Patents Co-operation Treaty (PCT) application. The Complete Patent Specification is a national application (Australia and selected countries) whereas the PCT extends your time period before committing to your country selection and thus opportunity for further commercialisation efforts.
Some time after a PCT is lodged (approximately 18 months) it is then necessary to decide in which particular countries you will have the patent apply. For example, you may just choose Australia, the USA and the UK.
Be very frugal with the selection of countries as most patents fail to actually make money and significant expenditure is required for each country in lodgement and maintenance fees. A granted Patent provides protection of an idea for 20 years, providing maintenance fees are paid on time.
Innovation Patent
This is a relatively new form of patent that is mostly used for relatively trivial innovations, almost gadget like. An innovation patent provides protection for eight years, but the innovation patent is only for Australia.
Trademarks
The area of trademarks is quite complex as to what can be protected and in what market it is used. A trademark is normally used to protect a brand and an identity, such as the Nike swoosh or the Mercedes Benz logo and name.
Trademarks are not excessively expensive but the application process can be frustrating as to what is trademark-able or not and which classes are required.
It is necessary to lodge for trademark protection in all jurisdiction in which you require protection.
Registered Designs
These apply to the form or shape of an object, such as perhaps the shape of a new car tail-light or a new comb or perhaps computer mouse.
Designs need to be separately registered in each country you seek protection.
Copyright
This generally refers to the written word and may include books, music, software and poems etc. There is no cost in gaining a copyright, all the author needs to do is write the following after the creation of the text: © Date and name of creator.
It is also a good idea to send a dated registered letter to yourself with the original; text that remains unopened until you may be required to provide proof of the original creation date. Copyright protection remains in force for some 70 years after the death of the creator.
Trade Secret
Lodging formal protection essentially requires disclosure of an idea and allows others to see in detail what you have done, or may be intending to do. For example you may patent a new type of light switch mechanism and via the publication of my patent this becomes public knowledge, perhaps even before the product is even on the market. In such a case my competitors can get advanced warning of what I am doing.
In many cases people and companies do not wish to do that and thus do not seek formal protection but instead keep the knowledge secret within their business as a Trade Secret.
Non Disclosure Agreement
This is a document you may request a party reviewing an idea to sign prior to disclosure. Many people and companies refuse to sign such agreements in fear that it may lock them out of a future field of endeavour. Nonetheless, even if formal protection is in place it is always a good idea to seek the signing of an Non Disclosure Agreement before disclosure occurs, if possible.