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Intellectual PropertyBy Brent Weston, Tucker & Cowen, Lawyers, Brisbane.

Intellectual property (IP) is a generic term that refers to various statutory and common law rights that allow for the protection and exploitation of creative effort.  IP is intangible rather than physical in character.

Intellectual Property

Common forms of IP or related rights are:

  • Trade marks – Gives the owner exclusive use of a particular sign to distinguish their goods and services from others. Requires formal registration, but unregistered trade marks with substantial reputation may be protected by the common law.  Registration of a business name, company name or domain name does not confer any enforceable IP rights on the name owner or company.
  • Copyright (including moral rights) – Protects the original expression of ideas comprised in literary, dramatic, musical and artistic works, and software. It does not protect the ideas.  Copyright arises automatically and does not require formal registration.
  • Patents – Protects devices, methods or processes which are new, useful and inventive or innovative. Requires formal registration.
  • Confidential information – Protected by the common law and by contractual obligations. Protects information which is sensitive or has commercial significance that is not publicly available.  Does not require formal registration.
  • Designs – Protects the visual appearance of a product. Requires formal registration.
  • Plant breeder’s rights – Protects new plant varieties. Requires formal registration
  • Circuit layouts – Protects the original layout of integrated circuits. Protection arises automatically.

Registered Australian IP rights can be protected in other countries under international treaties. 

Characteristics

IP has unique characteristics that make it complex to manage, such as:

  • protection is governed by different legislation and the common law. The type and period of protection varies depending on the nature of the IP;
  • IP rights are divisible, such that the right to use IP can be granted to a number of parties; and
  • a single piece of innovation may give rise to different IP rights. For instance, a piece of equipment may comprise a patent over a method of manufacture, design protection over components used in the equipment, copyright over software needed to operate the equipment, and confidential information and copyright with respect to documentation relevant to the operation and maintenance of the equipment.

Commercialisation

IP is a valuable asset that may be commercially exploited, such as by:

  • licensing and sub-licensing;
  • collaborative research and development activities;
  • assignment of rights; and
  • forming spin-off companies around the IP.

Australian regulatory authorities

IP Australia is responsible for the registration of trade marks, patents, designs and plant breeder’s rights (https://www.ipaustralia.gov.au). The Department of Communication and The Arts handles copyright and circuit layouts (https://www.communications.gov.au).

Protecting your IP in Australia

To gain protection in Australia, you will need to formally register your IP or obtain advice on how to best protect it. The MSI team have IP experts available to assist you.

Contact the author directly by email or by telephone.

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