Intellectual property (IP) is the foundation stone of the majority of new hi-tech ventures. In many cases, IP rights might be the only asset your business has. It is therefore essential to address IP issues from the earliest stages of planning how to commercialise your technology.
Unfortunately, new Australian hi-tech businesses do not have a good history of protecting their IP. Such omissions can often result in the failure of a young company.
IP is not like other types of property. It is 'intangible' – that is, you can’t touch it or protect it physically. The property is only visible in the embodiment of the property, such as a patented invention, a copyrighted work or a registered trademark symbol or word.
There are many types of IP including:
- patents
- trademarks
- copyright
-
trade secrets
The ability to recognise, value and protect IP is important for all businesses. But for hi-tech enterprises, safeguarding IP is absolutely critical: your entire company value and your ability to make a profit depends on the knowledge you possess and your capacity to protect it.
Many researchers disclose highly valuable information without even being aware that they have done so. Every time you discuss an idea, make a presentation at a conference or distribute descriptive documents to a potential client, you may have made a public disclosure for the purposes of IP law.
This could mean that you will weaken or lose your claim to the IP if you have not filed for a patent or other form of IP protection.
It is important to engage a capable IP lawyer as early in the business development process as possible. A lawyer can advise on the steps you need to take to ensure your IP is fully protected and defensible. They can also advise on topics such as non-disclosure agreements (NDAs).
You should file for a patent as soon as possible after completing your research. To protect inventions in other countries – a critical step if you plan to export – you must file for a patent in each of the countries to which you will be exporting. You should also undertake to a patent search in both Australia and internationally very early in your business planning.
The following websites and articles have more information about IP around the world.
IP Australia - www.ipaustralia.gov.au
The federal government agency responsible for granting rights in patents, trade marks and designs. IP Australia provides links to other international IP resources.
Australian Intellectual Property Law Resources - www.aph.gov.au/library/intguide/law/Intelectuallaw.htm
A useful Australian Government website with links to all key IP legislation, key national bodies, publications and other IP law sites.
Intellectual Property Research Institute of Australia (IPRIA) - www.law.unimelb.edu.au/ipria/index.html
This research centre provides detailed information about the latest national and international developments in IP law.
Clayton Utz - www.claytonutz.com/areas_of_law/controller.asp?aol=39&page=5
An introduction to intellectual property law in Australia
World Intellectual Property Organization (WIPO) - www.wipo.int/portal/index.html.en
WIPO is one of the 16 specialised agencies of the United Nations, that administers 23 international treaties dealing with different aspects of IP protection in 179 member nations. Under “News and Information Resources” WIPO maintains the following lists covering all member nations:
- Directory of National and Regional Industrial Property Offices
- website addresses of industrial property offices
- Directory of National Copyright Administrations
- website addresses of copyright offices
United States Patent and Trademark Office - www.uspto.gov
The authority for registering patents and trademarks in the US.
Patents.com - www.patents.com
Useful and practical information on US patents from the law firm Oppedahl & Larson LLP.
Avoiding Intellectual Property Problems - www.fplc.edu/tfield/avoid.htm
This article from the Franklin Pierce Law Center in the US provides a plain English explanation of the steps you must take to protect your own intellectual assets and avoid infringing other people’s IP rights.
The Technology Law Resource Site - www.kuesterlaw.com
A strong US-centric resource for technology-related intellectual property law, including patents, trademarks and copyright.
European Patent Office - www.european-patent-office.org/index.htm
Oversees the implementation and regulation of the uniform patent system in Europe.
Japan Patent Office - www.jpo.go.jp
Oversees application and management of industrial property rights in Japan.
State Intellectual Property Office of the People’s Republic of China (SIPO) - www.sipo.gov.cn/sipo_English/default.htm
SIPO is responsible for overseeing the Chinese patent law and coordinating China’s international IP affairs.