Intellectual Property
Overview
Intellectual property is receiving greater awareness, value and protection as the world moves towards a knowledge economy on a global scale. Ideas, information and expertise can be valuable assets. Intellectual property (IP) covers a wide range of creative productions and intangible assets (property that not is not a physical object). Examples of IP assets include:
- inventions;
- scientific discoveries;
- literary and artistic works;
- designs;
- symbols,
- names and images used in commerce and
- confidential information.
IP is divided into two general categories:
- Industrial Property including patents for :
- inventions,
- trade marks and
- industrial designs.
- Copyright which relates to artistic creations including:
- literary works (for example, books, poems and plays),
- films,
- music,
- artistic works (for example, paintings, sketches, sculptures and photographs) and
- architectural design.
Copyright has also been extended beyond the artistic realm to include some industrial creations such as computer software which is protected as a literary work.
IP is driven by competing policy considerations. On one hand it aims to encourage and reward creative input by giving an owner exclusive rights over their creations. On the other hand it aims to benefit the public by providing access to products and knowledge in a competitive market. These policy considerations are often most prominent when IP rights are tested in a conflict situation. Conflict may include legal action to stop an infringement such as someone selling your copyrighted products without authority. Opposition during the registration process is another common cause of conflict. An example might be when you object to a design that is very similar to one you have previously registered.
Because IP is an umbrella term there is a wide body of Commonwealth legislation to consider including:
- the Patents Act 1990 (Cth),
- the Trade Marks Act 1995 (Cth),
- the Designs Act 2003 (Cth) and
- the Plant Breeder's Rights Act 1994 (Cth).
Depending on the circumstances it may also be necessary to consider a substantial amount of case law and international treaties.
IP disputes are often high profile with a lot of media attention but enforcement is only one aspect of the IP world. Ownership and commercialisation of IP rights can be extremely important to a company’s profits. A good example of this is the Disney trademark.
IP rights are now universally regarded as very valuable rights. Indeed IP may be the lifeblood of a business and the major asset on the balance sheet. As a result IP management deserves careful consideration. It needs to align with product and brand development processes and form an integral part of your overall corporate strategy.
How a lawyer can help?
Navigate complex laws: IP comprises multiple areas of law. The fields are so complex that many IP lawyers specialise in particular IP fields, such as patents, trade marks or copyright. Business initiatives rarely fit into one tidy IP category. Advice from a specialist lawyer will help you when grappling with the mental gymnastics involved in understanding the requirements of IP legislation. It will also help you evaluate your options and understand the practical consequences of the various choices available to you.
Get the timing right: Protection should be initiated early as patent or design protection may not be available once the invention or design has been disclosed to the public. Trade mark rights should also be considered at the outset to ensure there are no obstacles to use and registration of your brand. This will help you avoid the expense and embarrassment of rebranding.
Registration made easier: IP Australia is the body responsible for registrable IP rights. It has a wealth of helpful and accessible information on:
- IP rights,
- the registration process and
- self-help tools.
However IP remains an administrative process with many technicalities, traps and tricks. IP lawyers who work with the registration procedures on a daily basis can often identify the best path to secure registration. They can also advise you on strategies that assist in protecting your commercial activities.
Protecting your rights: Ownership of an IP right may have no value if it is not defended. There is a great deal of skill in knowing how to enforce IP rights against third party use through:
- formal demand,
- complaints, and
- infringement proceedings.
You will also need a specialist lawyer’s help if a third party claims you or your business have breached their rights. A skilled IP professional can help you resolve a dispute and avoid litigation.
Marketing: IP lawyers understand the many different commercial ramifications of IP. This may include:
- preserving the confidentiality of IP assets such as trade secrets to prevent them being leaked by third party contractors or employees;
- ways of adding value or perceived value to attract business partners or investors such as generating royalty revenue by leasing IP assets to third parties;
- assisting with due diligence requirements such as regular audits to assess the quality and quantity of IP assets held and the viability of your strategic management plan; and
- coordinating commercial transaction such as buying or selling technology or brand licences or setting up franchise operations.
Intellectual Property Legal Topics
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