To help you identify which IP rights may be relevant to your business, and to better understand the advantages of each one, the different types of IP, both registerable and non registerable, are briefly described below.
Registerable Intellectual Property
Patents and patentable inventions
A patent is a right granted by the governing body within each country in relation to an invention. The right allows you to exclude competitors from exploiting, or benefiting commercially, from the invention.
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The inventor is therefore the only person entitled to benefit commercially from the invention, in that way rewarding the inventor, and encouraging innovation.
Patentable inventions which may be the subject of an application for a patent can be of many different types, including:
- new products and devices
- new substances, such as chemical formulations and new materials
- new manufacturing processes
- new business methods.
For an invention to be patentable it must:
- be novel, or new. The invention must not already be publicly known.
- involve an inventive step. The invention must be more than an obvious extension or variation to what is already publicly known.
- have utility which means, to be capable of commercial use, and not be just a theory
- not have been secretly used commercially before the date of application for the patent.
These requirements are largely the same, internationally. However, a patent is still granted by the government of a country. It is necessary to apply for a patent in each separate country where it is intended to commercially exploit the patentable invention, to exclude potential competitors.
A patent offers the right to exclude competitors for the duration of a granted patent. This will be the period of 20 years from the date of application for the patent (for some types of inventions, such as pharmaceutical products, this can be extended for up to 5 years).
Not every patentable invention is the subject of a granted patent. For example, an inventor may for example, decide to keep an invention as a trade secret.
In that case, the inventor might realise the economic benefits of the invention for more than 20 years, if it remains secret all that time. Or, may benefit for a lesser period, being the period until the invention becomes public knowledge (for example, by being developed by someone else).
A registered trade mark can protect elements of your brand such as a product name, tag line or logo. In this way, the trade mark helps to distinguish a specific product or service from a competitor's product or service. By doing so, this creates customer loyalty and enables the product or service to more effectively compete with other similar goods.
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A registered trade mark may be any one of the following:
- a letter (for example the W hotel chain)
- a combination of letters (for example IBM, and BP)
- a word (for example, Toyota, and Petronas)
- a phrase (for example, McDonald's 'I am loving it')
- a logo (for example, the distinctive McDonald's Golden Arches)
- a shape (for example, the triangular shape associated with Toblerone chocolate)
- a colour (for example, the use of green at BP petrol stations)
- a sound (for example, the distinctive sound of the original Nokia ringtone)
- a scent (for example, the distinctive aroma of a particular perfume).
The owner of a registered trade mark may protect the trade mark by excluding competitors from using the trade mark, or a deceptively similar trade mark, in relation to the same or similar products and services. A registered trade mark is easier to protect and to enforce.
It is not compulsory to register a trade mark, however, an unregistered trade mark is more difficult to enforce.
A trade mark is granted by the government of a country. It is necessary therefore to register a trade mark in each separate country where it is intended to sell the products or services associated with the trade mark, and to exclude others from using the same or deceptively similar trade marks.
A registered design protects the appearance and visual features of a product. It protects the shape, configuration, pattern or ornamentation which gives a product a unique appearance.
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A registered design may be two dimensional or three dimensional. To be registered, a design must be new and distinctive. Examples of registered designs can include:
- the shape and design of a mobile telephone
- the shape of a kitchen appliance
- the tread of a tyre
- the patterns on textiles or clothing.
An industrial design may be registered, and entitles the owner to exclude competitors from copying the design. Designs that are unregistered may have some copyright protection, such as a textile pattern, but generally, copyright protection is excluded from industrial products.
A design that is registered in one country, does not offer any rights in any other country. It is necessary therefore to register an industrial design in each separate country where it is intended to sell the products associated with the industrial design, and to exclude others from using the same design. A competitor may be free to use your design in any country where you decide not to register your design.
Plant Breeder's Rights
Plant breeder's rights are a right granted to a breeder in relation to a variety of a plant, or certain other matter such as fungi and algae.
Upon registration, the exclusive rights offered to the owner include:
- the ability to produce or reproduce the material
- condition the material for propagation
- sell the material, and
- export the material.
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A competitor may be excluded from exercising any of these rights in relation to the registered variety. Unless the variety is registered, these rights do not exist.
A plant breeder's right that is registered in one country, does not offer any rights in any other country. It is necessary therefore to register a plant breeder's right in each separate country where it is possible to propagate the variety concerned, and intended to exclude others from doing so.
Generally, a competitor can freely use your plant variety in any country where you decide not to register your plant breeder's right.
Non Registerable Intellectual Property
Copyright comes into existence as soon as work is recorded in some way. This may be by writing, keyboard entry and storage on a computer's hard disk, or making an audio or video recording. In most countries, Copyright is not a registerable right.
Copyright exists in the work itself, and is the exclusive right to copy, publish and distribute works, and to enjoy certain other rights, depending on the type of copyright work concerned. Some examples of works which Copyright may exist include software programs, databases, literary works, photographs, sound recordings and video recordings.
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Copyright protects the work as reduced to a material form. It does not protect ideas or concepts encompassed in the work, but rather, the expression, in material form, of those ideas or concepts.
Because registration is not necessary for copyright to subsist, copyright exists in all countries in the world that have passed their own laws to observe the Copyright created by nationals of countries that are member states of the Berne Union.
Confidential Information is information which has value and is not publicly known, giving your business a competitive edge that would be lost if it were obtained by your competitors. For example, this could include manufacturing know how and trade secrets, databases of customers, databases of suppliers or the functionality of computer programs.
These are all things which are intellectual in nature and a business should seek appropriate strategies to keep these items confidential.
Intellectual capital is broader than intellectual property, and broader than trade secrets, know how, or confidential information. In broad terms, intellectual capital is knowledge that is useful to an enterprise. It can be broken into three categories: human capital; structural capital, and relational capital.
The meaning of these categories, and some examples, is set out in the table below:
Valuable knowledge assets held in the heads of your staff and available for use to create wealth for the enterprise.
Systems and practices of your enterprise that add value and create wealth for the enterprise (â€œthings that are still there when the staff go home for the nightâ€).
A part of human capital is confidential information, including what may be described as know how and trade secrets. But human capital goes further, referring as well to skills, competencies and experiences that make staff members an important part of the capital of an enterprise.
Most organisations contain structural capital including what may also be described as know how and trade secrets. Examples may be quality control systems, process and procedure manuals, customer databases, etc. This is non proprietary intellectual property, as distinct from the proprietary Copyright works that may record these systems, processes and manuals.
Circuit Layout Rights
Circuit layout rights protect the layout designs for integrated circuits and computer chips which are central to the operation of many electronic devices.
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Circuit layout rights are similar to Copyright, in that the rights exist from the time that the design is put into a material form, and registration is not necessary.
The owner of the circuit layout rights is entitled, generally, for 10 years from the time that the circuit layout right is first commercially exploited, to copy it, make integrated circuits, and to commercially exploit it.
Because registration is not necessary for circuit layout rights to subsist, circuit layout rights exists in all countries in the world that have passed their own laws to observe the circuit layout rights created by nationals of countries that are member states of the IPIC Treaty.
The sheer diversity of IP and circumstances surrounding its creation, can make it difficult for a company to be fully aware of the extent of its IP. An IP audit can help remedy this.