Australia: Identifying and protecting your intellectual property assets adds value to your business

Last Updated: 4 November 2013
Article by Dan Brush

In brief - Take active steps to enforce your rights to your IP and act swiftly to respond to misuse by third parties

Take action early to register your IP; use appropriate contracts for your employees, contractors and suppliers; use non-disclosure agreements before divulging confidential information and respond quickly and vigorously to misuse of your IP.

Identifying and protecting your IP assets requires ongoing vigilance

All businesses, from the biggest to non profits and new businesses, create intellectual property assets - IP assets. These IP assets include how your products and services are made and distributed, business plans and the way you do business, as well as more traditional IP assets such as your brand, trade marks, trade names, patents and other registered assets.

In short, your IP assets include most of what makes your business unique.

While creating IP assets happens in the normal course of operating a business, identifying and protecting those assets takes care and attention.

Costs in time and money in IP asset protection can be recouped, as IP assets bring value to your balance sheet. IP assets can also be the subject of security interests and offered as security in certain transactions.

How do you identify your intellectual property assets?

An IP asset identification and protection regime is appropriate in many situations, including where:

  • There are aspects of your business that represent a unique idea or are inventions, products, services or business processes that you want to own
  • You want people to identify the asset with your business
  • You want to keep some or all of the asset confidential or subject to limited access
  • You do not want other people to misuse the asset
  • You do not want to make the asset available to everyone to use without your permission

Conducting an audit of your intellectual property

If you are not starting from scratch prior to the launch of your business, some sort of audit of your business is a good first step to identify intellectual property in use (or about to be in use) and to determine the best means of protection.

Once the base of IP assets is identified, it is appropriate to establish procedures to monitor recent activity regularly and to review the use of IP assets.

How do you protect your IP assets?

General methods to allow ongoing protection of IP assets by your business include:

  • Use of trade mark registrations to protect brand(s)
  • Use of copyright to protect content (written, audio and visual)
  • Use of design registration for new and distinctive designs
  • Acquiring rights to domain names, including similar domain names which could potentially be misused, to pre-empt cyber-squatting and other consumer confusion
  • Marketing and commercialising your products and services in a way that reinforces your rights to your IP assets

IP asset protection is generally on a country by country basis. If your business operates overseas, IP asset protection within all important markets is advised.

Your business also should regularly monitor how other businesses may be using material that is the same as or very similar to your IP assets.

Quick detection of third party use of IP that is the same as or substantially similar to your IP assets, and a strong response to any misuse is one of the more cost effective ways to preserve your rights. Failure to enforce your rights or to respond to misuse can weaken your rights to your IP assets, even if you have taken steps to protect them.

3D printing and manufacturing give rise to new competitive threats

Just as protection of written content has been challenged by "cut and paste" functionality on the internet and before that by photocopiers, replication of physical objects is being transformed by new 3D manufacturing technologies.

3D printing and manufacturing devices which are easily available in the marketplace can effectively re-create a wide range of items, from "static" items such as latch keys, to items with moving parts, such as engines and other complex widgets. This technology has made mass production of "knock offs" of physical objects easy and cheap.

Undertaking a comprehensive review of your product range and securing protection for unique designs and "look and feel" are important steps to preserving corporate value.

Four things you can do to enforce your rights to your IP assets

  1. Act early to register your intellectual property
  2. Registration of various kinds of IP such as trade marks, designs, copyright and patents is available, but early action is often required to secure rights. Delay can be fatal to registration applications. A retrospective effort to identify and protect assets that have been created and used without protection can be difficult, costly and not wholly effective.

  1. Employment contracts, independent contractor and supply agreements
  2. Your employees, contractors and suppliers will be the most important source of IP assets used by your business. Use of the appropriate employment contracts and independent contractor agreements can confirm that your business owns all of the intellectual property created by your employees and by contractors while they are working for you.

    Similarly, your service providers may also help you create new ideas and improvements to your business. Your relationships with your suppliers should confirm that those supplier associated IP assets belong to your company, or are shared between the two businesses. You should avoid the situation where service suppliers can own ideas created due to their access to your business.

  1. Using non-disclosure agreements when divulging confidential information
  2. Disclosure of confidential information without any agreement requiring the recipient to keep the information confidential may have the effect of putting the disclosed information into public domain - that is, anyone can use it.

    If your business regularly deals with commercially sensitive or confidential information and needs to disclose all or some of this information to third parties, be sure to use appropriate non-disclosure agreements. If used correctly, non-disclosure agreements confirm the proprietary nature of your information and impose limits on its use by the recipient.

    A non-disclosure agreement that does not suit your business (including agreements that are overly broad or not specific enough) can have limited effect and may be difficult or impossible to enforce.

    It is also helpful to monitor regularly the types, quantity and quality of sensitive information that you do disclose. If disclosure isn't necessary, don't share the information.

  1. Notify the world of your rights to your IP
  2. Your rights to your IP assets can be broadcast through the use of sensible commercial agreements and disclosures on your web pages and in your other company documents. Accurate use of IP asset symbols such as TM or © is helpful.

    Be vigilant and take active steps to prevent others stealing your IP.

    Your business know-how is important, it takes a lot of effort to get it right and the way of getting it right is always evolving. Proactive use of IP asset protection allows you to build value in your business and enables you to fend off unfair competition by third parties who want to share dishonestly in your success.

This is a complex area.

Dan Brush
Intellectual property
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Dan Brush
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