Introduction to Intellectual Property

“Intellectual Property” is a phrase that is often thrown around these days. Most people understand that it can be valuable, that it can be an important element especially in today’s highly competitive markets. However, most people do not understand what it actually consists, and what rights go with it.

There are several types of intellectual property:

Patents

A patent is a right to protect something that you have invented. It can be a device, substance, method, or process, and it has to be new, inventive, and useful. You cannot patent artistic creations, mathematical models, plans, schemes, or mental processes. Patents have to be examined and registered with IP Australia, the Australian Government’s Intellectual Property body.

Having a patent gives you the exclusive right to commercially deal with your product for the lifetime of the patent. In Australia, the standard patent lasts for 20 years, and annual maintenance fees are payable.

While patents give you protections for your product, remember that patents only last for a limited period of time, after which your patent becomes part of the public domain. This may be an issue for you if you would like your product to be exclusively sold by you in the long run.

Trade Marks

A Trade Mark is a mark that represents your business’s image or brand. A Trade Mark can be a phrase, logo, symbol, design, image, aspect of packaging, or combination of these. In some circumstances a Trade Mark may even be a sound, smell, shape, or colour. It is used to distinguish your goods and services from the goods and services of other businesses.

Registration of your Trade Mark gives you the exclusive legal right to use, license, or sell it to others within the territory that it is registered in. Registration is not compulsory; however registration reinforces already existing protections under common law.

Copyright

Copyright is a protection of the original expression of an idea, not the idea itself.  Copyright protects original works of art, literature, music, films, sound recordings, broadcasts, and computer programs. In Australia, Copyright is not registered and protection is automatically provided when the work is written down, painted, or recorded.

Copyright generally lasts for 70 years from the author’s death. Once copyright has expired it becomes part of the public domain.

Designs, Circuit Layout Rights, and Plant Breeder’s Rights

Designs are the features, shapes, patterns that give a product a unique appearance. An artistic design is covered by copyright but a registered design gives you exclusive right to commercially exploit the product.

Circuit Layout Rights refer to designs for circuits and computer chips. They do not need to be registered however the rights can last up to 20 years from the year the layout was made.

Plant Breeder’s Rights are protections on new breeds or varieties of plants. They must be registered and the protections generally last for 20 to 25 years.

Confidentiality and Trade Secrets

You should consider confidential information and trade secrets to be also intellectual property. After all, nobody can infringe on your right if nobody knows about it or knows how to reproduce the work. In certain situations a confidentiality or trade secret strategy may be appropriate to protect your intellectual property. Your strategy can be backed up or reinforced with confidentiality agreements.

All in all, intellectual property protection can be complicated.

As it is a developing area of law, it changes frequently and you should always get advice from your lawyer or an intellectual property specialist.

Dealing with Bad Debt

Managing and dealing with your cash flow is very important for anyone in business, but a failure to manage bad debts may be highly damaging to a small business. As a small business, you must be always mindful of this situation, especially in the current economic climate.

Unfortunately in the current economic climate, bad debts and commercial disputes become all too common. Most people are quick to rush off to see a debt collector, or a solicitor, however the problem with taking legal action is that doing so may be costly and time consuming. Before taking such a path, you should review and assess:

  • If you have a clear, straightforward, and strong case
  • If you do not have a clear case, if you need to obtain legal advice to consider your position
  • If the matter can be negotiated and resolved
  • If an lower value offer is made, is it reasonable to accept it rather than to start legal proceedings

Court isn’t necessarily the first place to go to resolve a dispute. Rather, it should be considered the last place to go. The court system is often, slow, procedural, adversarial in nature, inflexible, and costly. There is also the risk that you may lose the case and be subject to paying the costs of defending the case.

The last thing you have to take into consideration is the capacity of the debtor to pay. There is no point in wasting both time and money taking action and enforcement against a debtor who cannot pay.