- Buyer's Guide
Intellectual property refers to the knowledge you have created and wish to exploit.
There are several means of protection, depending on the innovation or idea.
It is suggested the reader refer to the excellent Web site of the Australian Governments’ Intellectual Property Office www.ipaustralia.gov.au. This site is well constructed, simple to navigate and provides all of the required information in is easy to understand plain English.
In addition to IP Australia’s helpful guidance, if you require advice in relation to your specific scenario then many Patent Attorneys are willing to provide typically one hour of free advise when asked.
The area if intellectual property can be extremely complex, so only a brief overview is included below for the different areas of protection available.
Registrable intellectual property rights:
The first thing to understand about patents, and one that is not understood by many people, is that you lodge your patent in the country in which you wish to do business. For example, if I wish to sell into the USA and be protected in that market I do not need to lodge a patent in China to prevent them from making the product. The USA protection prevents anybody from selling into the USA, irrespective of where the product is made.
Provisional Patent (PP)
The most common starting point in the patent process is to lodge a Provisional Patent. This can be done on-line through the IP Australia Web site. The cost is just $80.00.
A provisional patent is not normally examined, except perhaps in the case of a dispute of priority date (the date the idea was first thought of and documented in the form of a Provisional Patent).
A PP represents the priority date protection for protection to be commenced and lasts for 12 months. Coverage is for all countries that are signatories to the Patents Co-operation Treaty (PCT). More than 130 countries are included in this coverage including the USA and EU.
The 12 months PP window is aimed at giving the innovator the opportunity to explore the opportunity in more depth and perhaps develop the idea to a better level, thereafter a Complete Patent Specification can be lodged.
Complete Patent Specification and PCT
A Complete Patent Specification is a detailed document that in essence details the “method and Apparatus” that is the invention. Novelty, ie) If it has not been done before is an essential requirement to in succeeding with the granting of a Patent.
Note that it is not possible to patent just an idea, such as perhaps ant-gravity boots. What is required is a knowledge of just how you will achieve the desired outcome, ie) method and apparatus.
It is common if you wish to proceed with an invention to move from the PP stage to what is referred to as a complete patent specification or a PCT Application. The Complete Patent Specification is a national application (Australia and selected countries) where as the PCT extends your time period before committing to your country selection and thus opportunity for further commercialisation efforts.
Some time after a PCT is lodged (approximately 18 months) it is then necessary to decide in which particular countries you with the have the patent apply. For example you may just choose just Australia, the USA and the UK.
Be very frugal with the selection of countries as most patents fail to actually make money and significant expenditure is required for each country in lodgement and maintenance fees.
A granted Patent provided protection of an idea for 20 years, providing maintenance fees are paid on time.
Filing a complete patent application directly in Australia costs $290, requesting an examination $420 and if accepted $140. The costs for filing directly for a PCT application are in the range of $1,600 to $2,500.
This is a relatively new form of patent that is mostly used for relatively trivial innovations, almost gadget like.
An innovation patent provides protection for eight years, but the innovation patent is only for Australia.
The fee for lodging an Innovation Patent is $150 and to request examination is $370.
The area of trademarks is quite complex as to what can be protected and in what market it is used.
A trademark is normally used to protect a brand and an identity, such as the Nike swoosh or the Mercedes Benz logo and name.
Trademarks are not excessively expensive but the application process can be frustrating as to what is mark-able or not and which classes are required.
Price for lodgement is typically $160 per trade mark per class in Australia.
It is necessary to lodge for trademark protection in all jurisdiction in which you with protection.
These apply to the form or shape of an object, such as perhaps the shape of a new car tail light or a new comb or perhaps computer mouse.
Designs need to be separately registered in each country you seek protection.
Price is typically $200 if filed directly with IP Australia.
This generally refers to the written word and may include books, music, software and poems etc.
There is no cost in gaining a copyright, all the author needs to do is write the following after the creation of the text:
© Date and name of creator.
It is also a good idea to send a dated Registered letter to yourself with the original; text that remains unopened until you may be required to provide proof of the original creation date.
Copyright protection remains in force for some 70 years after the death of the creator.
Lodging formal protection essentially required disclose of an idea and allows others to see in detail what you have done, or may be intending to do.
For example you may patent a new type of light switch mechanism and via the publication of my patent this becomes public knowledge, perhaps even before the product is even on the market. In such a case my competitors can get advanced warning of what I am doing.
In many cases people and companies do not wish to do that and thus do not seek formal protection but instead keep the knowledge secret within their business as a Trade Secret.
Coca-cola is an example of a company that has done just that in protecting its secret formula.
Non Disclosure Agreement
This is a document you may request a party reviewing an idea to sign prior to disclosure.
Many people and companies refuse to sign such agreements in fear that it may lock them out of a future field of endeavour. Non the less, even if formal protection is in place it is always a good idea top seek the signing of an NDA before disclosure, if possible.