Intellectual Property FAQs

What is Intellectual Property (IP)?

Intellectual Property (IP) is a term used to describe the legal right which rewards people for their creativity and innovation. In most cases, an IP can obtain protection only by applying for, and by having the nature and extent of the creation examined before protection is granted. IP rights are known as Patents, Trademarks, and Designs. Copyright is also a protected IP right but, unlike the other forms of IP, automatically occurs as soon as the work is created. In most cases copyright needs to be asserted or brought to the public's attention by using the symbol ©, followed by the year and name.

What are the main types of Intellectual Property?

There are four main types of IP:

1. Patents are granted for inventions for new and improved products or for new processes for making both old and new products. Patents must have some useful advantage over known products and processes.

2. Trademarks are protected rights given for names and logos, which are distinctive for makers or providers of goods and services. Trademarks are in many cases, along with recognizable colors and company livery, the cornerstone of a company's brand.

3. Designs protect the new look of the whole or a part of an article.

4. Copyright protects the original works of their creators (often called authors) and encompasses such things as literary and artistic works, music, films, sound recordings and broadcasts, software, blueprints, design drawings, sketches, manuals, and multimedia displays.

What are the other forms of Intellectual Property?

Other forms of IP include trade secrets, company “know-how”, geographical indications, plant varieties, timber marks, moral rights of artists and Integrated Circuit topography.

What is a trade secret?

A trade secret refers to any “in-house” formula, system, pattern, recipe, or compilation of information inherent to a business. A trade secret provides the business with an advantage over its competitors who do not know of or use the secret. Even though more than one person can have access to it, the information is kept as a secret to the trade. To retain control of a trade secret an owner must take all reasonable care to ensure its secrecy. Such reasonable care will invariably involve identifying written material as being confidential and by limiting access to that information only to those staff who have signed a confidentiality or non-disclosure agreement. Probably the most talked about trade secret example is the Coca-Cola recipe.

What is a patent?

A patent is a legal document protecting a new invention. It gives an inventor the sole rights to his or her invention to determine who can and who cannot use that invention commercially. A patent owner is therefore placed in a protected position in the marketplace and is rewarded for his or her innovation.

Just about every country in the world recognizes and protects innovation by offering inventors protection for their inventions through the patent system. Inventions protected by patents are ultimately enforceable through the courts. When a third party is deemed to be an infringer, the court may issue an injunction stopping further infringement, and destruction of the offending items plus the means to make the infringing items. In many cases the courts will also order the infringer to recompense the patent owner for any lost profits or reduced sales.

How long does a patent last?

Over 150 countries have some form of patent system. The patent system allows inventors to retain a monopoly over their inventions for a limited period of time - usually 20 years. This means that any inventor of a granted patent can legally exclude others from commercially exploiting the invention. Making, using, selling, licensing or importing the patented invention without consent from the patentee (inventor or owner) becomes an illegal act (an infringement).

What is patentable?

A patent is such a powerful document that it is only granted for true inventions. A patentable invention is one which is new, inventive, and able to be applied commercially. To be considered new the invention must offer to the public elements that have not previously been known and which contribute to the body of existing knowledge. To be inventive, the invention must contain something that is not obvious to someone who has knowledge in the technical field of the invention. To be commercially applicable, the invention must be of practical use.

Is computer software patentable?

Yes. Most countries accept computer programs as proper subject for patent protection with the proviso that the computer program provides for a new technical character when applied to the computer. A new technical character is generally considered to mean a technical improvement of the way something works.

Are business methods patentable?

The answer to this question is both yes and no, but more yes than no.

The United States and Australia both recognize business methods as being patentable so long as they produce a technical advantage or a technical solution to a problem. In Europe, the situation is different. Although a number of business schemes have been granted a European patent, the convention states that some subjects are not patentable inventions. These include “schemes and plans”, rules, and methods of doing business.

What can't be patented?

Not all inventions are patentable. In most countries patents cannot be gained for mathematical formulations, scientific theories, natural substances, or to schemes and plans. Many countries also have specific exclusions to methods of medical treatment.

Be aware that while patents are not granted for the trivial or obvious, the majority of patents that are granted are to improvements of existing products or processes that provide advantages not previously available. Very few inventions are ground breaking and the majority of patents that are granted can be classified as improvement patents.

What do the terms “Patent Pending” and “Patent Application Number” mean?

“Patent Pending” and “Patent Application Number” stamped on a product or on packaging by a manufacturer or distributor inform the reader of the intent of the inventor to seek patent protection. The terms do not necessarily mean that the product or process is protected - only that protection has been applied for. The terms are often used to discourage would-be competitors from a particular desirable technology.

Is it necessary to perform a patent search before applying for a patent?

No. There are no rules which require you to perform a patent search before filing a patent application. In cases where time is of the essence, a patent application is sometimes filed first. There are however very good reasons why you would want to perform a search prior to filing your application. A search will offer clues as to the novelty of your invention and the extent of possible market interest.

What is a Provisional Patent Application?

A Provisional Patent Application is a temporary or interim application filed with a patent office prior to making a final or complete application. A Provisional Patent Application provides a framework that an inventor can use to develop an idea, investigate some of its commercial implications, and explore possible markets before being burdened with the cost and effort of gaining full legal protection by filing a completed Application.

Although not in itself enough to monopolize an invention, a Provisional Patent Application will provide an applicant with an all-important priority date and patent pending number. As such, Provisional Patent Applications are widely used by inventors as a low-cost option for beginning the patent process. The Provisional Patent Application signals to the market the serious intent of an inventor to commercialize an invention and allows prototypes to be made, products to be marked with the patent pending number, and the invention to be publicly disclosed and sold without losing the ability to seek full monopoly rights within the following 12 months.

What is a Trademark?

Simply put, a Trademark is a mark by which other people recognize your products or services. It is the means by which a business makes itself visible in the marketplace. A Trademark can be any distinctive (not solely descriptive) name or logo. The best Trademarks are instantly recognizable and conjure up in the minds of existing or potential customers things like quality, dependability, or at the very least the source of the goods or services being bought.

Examples of well-known Trademarks are; Coca-Cola, Rolls Royce, the Apple logo, and the Nike “swoosh” symbol.

What is Copyright?

Copyright is a type of Intellectual Property right which gives the creators of original works (such as films, books, plays, music, drawings, writings, blueprints, and designs) the right to control the use of their original material. In many countries, Copyright also enables the owners of such works the moral right to object to distortions or offensive displays of their works.

Copyright does not and cannot protect an idea, a name or a title. It can however, protect the specific manifestation of an idea or the physical display of an idea.

What is a Design?

A Design is how a product looks and has been likened to a special form of copyright. Designs can be registered. A Registered Design protects any new or original feature(s) of a product such as its shape or configuration or, in the case of textiles, the pattern or ornamentation. As long as the design is new and not dictated solely by its function, the design can be protected. Additionally, a design has to have some aesthetic value. Good examples of different designs are the new shape of a chair, a lamp, or a bottle.