Intellectual property

Intellectual property (IP) is property of the mind or intellect. For a business, it also means proprietary knowledge.

IP covers a range of legal rights that can arise through either statute or common law.

The globalisation of many markets has led to an increasingly competitive environment. Most companies are striving to find and sustain a competitive advantage - something that will satisfy customer needs better and more profitably than the competition.

Often it's a company’s IP that sets it apart in the market place. Unless your IP is protected, your innovation could be copied by a competitor –-taking market share and profits that could have been yours.

Types of business IP

These types of intellectual property can be protected:

  • inventions
  • devices
  • industrial processes
  • business or trading name
  • logo - words or symbols
  • pictures, sounds, smells or a combination of these that helps distinguish your products and services from those of other traders
  • designs
  • literary or artistic works
  • plans
  • new plant varieties
  • original circuit layouts
  • goodwill.

Types of IP protection

Your IP protection strategy will depend on the type of asset you have identified as intellectual property. Types of IP protection you may want to consider include:

  • Patents - generally viewed as the strongest form of protection for practical invention, devices and industrial processes.
  • Trade marks - the name and logo, eg words or symbols, pictures, sounds, smells or a combination of these that helps distinguish your products and services from those of other traders. For this reason, a trade mark can be one of a company’s most important assets, especially as it can potentially last forever.
  • Registered designs - any new design for an item, or a new pattern applied to that item, can be registered as a design, the protection for which is based on visual appearance.
  • Copyright - protects original literary or artistic works, including most plans, drawings or artworks. There is no registration procedure - rights arise automatically on the creation of the work. Copyright only protects the work in the particular form expressed, not the idea behind the work.
  • Plant breeder’s rights - any new, distinct and homogeneous varieties of plants can be protected and the owner of the right can gain control of the right to reproduce the plant.
  • Other types of IP - other types of IP include know-how, other confidential or proprietary information, 'trade secrets' and original circuit layouts.
  • Goodwill - the Trade Practices Act 1975 and common law rights against passing off also help you to protect your goodwill and its use from misleading or deceptive conduct by other traders.
  • Licensing - patents, trade marks and registered designs are forms of property that may give rise to opportunities for leasing arrangements, or licences. By licensing the right to use your intellectual property you can maintain ownership of the rights and collect royalties from the users.

IP explained - IP Australia

Protecting your IP

IP management is vital in managing a business and should be considered part of your business strategy. To begin the process of protecting your IP, consider these actions:

Identify your IP

Identify all IP associated with your business - eg literary works, designs, artwork, graphics, logos, plans and processes. Check that you own each item of IP used in your business or that you have the right to use it.

Create a dollar value for each item of IP - you may require experts to assist with this task.

Identify unregistered IP and give each a dollar value - you may require experts to assist with this task. Identify other valuable assets such as client lists and corporate knowledge.

Conduct a search

If you have decided to protect your business IP, it's best to consult with an expert on the most appropriate form of protection - an expert will also conduct an official search on the patent, trade mark and design databases to ensure your ideas are new and to avoid infringing the rights of others.

Place on balance sheet

List your registered IP with other assets on the company balance sheet - this will give a more realistic representation of the value of the business.

Identify key staff involved in developing, maintaining and protecting your IP - educate them on the nature of IP, how to protect it and their responsibilities, and consider obtaining signed agreements relating to confidentiality and competition.

Insure your IP

Consider insuring your IP against infringement. It's worthwhile considering an economic analysis of the value of insuring your IP against others infringing it and also whether your business should insure against infringing someone else's IP.

While industry opinion is that insuring IP is extremely uncommon and often expensive, there may be opportunities to establish alliances with companies of international standing so that in the event of infringement there may be the opportunity of assistance from an interested party with deep pockets.

Integrate with brand

Make effective trade marks the core of your brand and image building strategy, and keep them consistent - make sure your target market knows of the benefits of your offer, and make sure your messages and delivery are consistent.

Contact an IP expert

Intellectual property is a complex subject and requires the input of an expert, such as a qualified patent attorney.

The Institute of Patent and Trade Mark Attorneys of Australia can assist and advise regarding selection of a patent attorney.

Related information

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Page last updated 22 August 2022

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