Jane Garber-Rosenzweig, Principal of Gable Lawyers, explains to RED magazine the importance of protecting your intellectual property.
In the world of business, many entrepreneurs have great ideas, which may lead to multi-million dollar businesses, but initially they are just that – ideas, which can be easily stolen. As such, all ideas, designs, names and logos require protection.
Does your business have a well-recognised name? Is your product unique and not yet available on the market? Have you created a design which is different to anything currently available for sale? Have you written a book or other type of published material? If the answer is yes to any of the questions posed, you need to seriously consider protecting your intellectual property.
Intellectual property is intangible property created as a result of your creativity and includes patents, designs, copyrights and trademarks. In order to recognise what intellectual property rights you may have, which may require protection of official registration, consider the following:
- Inventions can be protected by patents. Patents are rights granted for any device, substance, method or process, which is new, inventive and useful. However, not every invention can be patented. For example, software can be patentable, however computer programs and business methods may not get patent approval. Software that is merely a procedure for solving a given type of mathematical problem or mathematical algorithms and abstract intellectual concepts on their own, are not patentable.
- Product appearance (not its function) can be protected by registering its design. For example, Holden tyres have a design registration that protects them from knock-off tyres being sold under the Holden name.
- Brand logos and trade names can be protected through registering a trademark. This includes rights granted over a word, phrase, letter, number, sound, smell, shape, logo, picture or packaging used by your business.
- Copyright law automatically protects written works and written expression of ideas. No registration process exists for copyright. It should be noted that copyright does not protect the idea itself, simply the writing.
It is imperative that a strategy is developed to ensure that all of your intellectual property is protected. It should be done earlier rather than later. It’s better to be safe than sorry.
First and foremost, do not talk about your ideas or intellectual property to anyone until it is adequately protected and all relevant registrations have been obtained. However, if any discussions are required, a well-drafted confidentiality deed is necessary.
The second step is to check whether registration is available for your specific type of intellectual property. If so, apply straight away. For example, if a business idea is an inventive process or contains a design of a product, and it has not been publically displayed or commercially utilised, a patent (and potentially a design) registration may be obtained. However, application for a patent or design registration requires full disclosure in the application of the process / recipe / design / concept or product.
For most businesses, all that is required is trademark protection of their name and logo. The registration process will cover describing the classes of goods and/ or services covered by your trademark.
If a patent is required, remember to safeguard and maintain secrecy until you have filed your application. Further consideration is that a patent registration is for 20 years (up to 25 years for pharmaceuticals), after which the patent can be used and copied by anyone. You may determine that keeping your invention a secret is better than applying for a patent and having to disclose the invention’s details. Protection in this manner is known as a trade secret. Trade secrets work best where the product is difficult to reverse engineer and the knowledge can be protected with confidentiality agreements. Therefore, for some products it may be more prudent not to register a patent but to maintain secrecy of the formula or design. The best example of such unregistered product is KFC secret herbs and spices.
One of the most comment queries these days is about the patentability of apps for smartphones. The answer is maybe. The requirements for patentability of smartphone apps are no different from any other computer-related inventions. They include the novelty factor and the invention element. Thus, an assessment must be made on case-by-case basis.
With intellectual property, prevention is better than a cure. Review your intellectual property today and if any registrations are required, apply for them without delay.
If you want to protect your intellectual property and unsure where to start or what to so, give Gable Lawyers a call on 03 9863 9544 or email us on firstname.lastname@example.org and we will be able to assist you and guide you through the process.
Gable Lawyers’ contact details are:
T: 03 9863 9544
F: 03 8732 0363