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Intellectual property (IP) results from the application of someone's mind or intellect to create something new or original. IP can exist in various forms, for example, IP can be an invention, a trade mark, book, film, trade secret or artistic design. In Australia, IP laws allow people to have the exclusive right to use and control, and therefore profit from, their own intellectual and creative endeavours.

IP is one of those areas that most business owners tend to neglect when considering the assets of their business.  Items such as equipment, facilities, and buildings are usually thought of first, however, intellectual property is an increasingly valuable asset for many businesses. Additionally, it is also an important factor when differentiating businesses.  For example, while two companies may each produce a lounge chair, each chair has a different design, production process and brand name each reflecting different types of IP.^[1]

There are different types of intellectual property and a brief overview is given below:^[2]

Patents

A patent is an exclusive right to exploit an invention commercially, granted for a limited term in return for public disclosure of the invention.

Any commercially useful method, process, product or device that is innovative or inventive can be patented. However, some things are not patentable by law, for example, mathematical models, purely mental processes and artistic creations.

Australian patents are administered by IP Australia.

Trade marks

A trade mark is a unique way of identifying a product or service to distinguish it from its competitors. It is not necessary to register a trade mark to use it, but registration provides an exclusive right to use, license or sell that particular trade mark.

Australian registered trade marks are administered by IP Australia.

Designs

For the purposes of IP, design means the overall appearance of a product. This includes the shape, configuration, pattern and ornamentation which, when applied to a product, give it a unique visual appearance. A product is anything that is manufactured or handmade. Importantly the mechanics of how a product works or operates is not protected by designs law, but may be protectable as a patent.

Some designs are not considered registrable by law. These include designs for medals, layouts for integrated circuits, Australian currency and scandalous designs.

Australian registered designs are administered by IP Australia.

Plant breeder's rights

Plant Breeder's Rights (PBR) is a form of patent for new plant varieties.  With respect to the propagating material, PBR grants the breeder of new plant varieties the right to exclude others from doing the following:

(a) produce or reproduce the material;
(b) condition the material for the purpose of propagation;
(c) offer the material for sale;
(d) sell the material;
(e) import the material;
(f) export the material; and
(g) stock the material for any of the purposes described in (a) to (f). 

Copyright

Copyright provides free and automatic protection for an author's original expression of ideas and information captured in a specific medium. The most common works protected by copyright are books, films, music, sound recordings, newspapers, magazines and artwork. Copyright also protects originally created typographical arrangements, databases, media broadcasts, computer programs and even compositions of other people's work such as academic journals or CD compilations.

The moment an idea is put down in a material form, such as on paper, recorded on tape or stored on a computer disk, it is automatically protected by copyright. Because copyright protection is automatic in Australia, there is no official registry or application process for copyright protection.

Australian copyright is administered by the Attorney-General's Department.

Circuit layout rights

Circuit layouts are the layout designs or plans (topographies) of integrated circuits used in computer-generated equipment. They are sometimes referred to as computer chip or semi-conductor chip designs.

A circuit layout is a two-dimensional representation of the three-dimensional location of electronic components in an integrated circuit.

Circuit layouts are usually highly complex and the intellectual effort in creating them is considerable and may be of great value. An integrated circuit or chip made from a layout is vital in all kinds of electronic devices, from pacemakers to personal computers.

Circuit layout rights are administered by the Attorney-General's Department.

Trade secrets and confidential information

In Australia, the law regarding the protection of trade secrets and confidential information is prescribed by common law. This method of protection for trade and commercial secrets therefore needs to be managed by the entity wishing to keep something a secret.

Protection is usually maintained by not disclosing the secret information at all (or by disclosing to only a very limited number of recipients). When disclosure is unavoidable, best practice would mandate that such disclosure is made only after comprehensive written confidentiality agreements have been agreed by the discloser and recipients. Trade secrets are most effective in cases where the product is difficult to reverse engineer - that is, difficult to recreate from scratch. One disadvantage is that trade secrets do not provide any legal security against an independent competitor inventing an identical object.

For further information, visit IP Australia and IP Toolbox.

^{[1] IP Toolbox
[2] Ibid}