Intellectual Property Rights and Patent Application
The success of a company often relies on the integrity of its employees. Products are normally the result of years of research, engineering, and development. This is referred to as the intellectual property of the company. Protection of intellectual property can be critical to the success of the company in a competitive industrial economy. This is why it is very important for employees to help protect design ideas and trade secrets. Many companies manufacture their products in strict, secure, and secret environments. You will often ﬁnd proprietary notes on drawings that inform employees and communicate to the outside world that the information contained in the drawing is the property of the company and is not for use by others.
Software piracy is the unauthorized copying of software. Most software licenses support use at one computer site or by one user at any time. When you buy software, you become a licensed user. You do not own the software. You are allowed to make copies of the program for backup purposes, but it is against the law to give copies to colleagues and friends. Software companies spend a lot of money creating software programs for your professional and personal applications. Each new release usually provides you with improved features and more efﬁcient use. When you use software illegally, you hurt everyone by forcing software companies to charge more for their products. Ethically and professionally, use software legally and report illegal use when observed.
A copyright is the legal rights given to authors of original works of authorship. The Australian Constitution establishes copyright and patent law and empowers the federal government to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. Copyrights control exclusively the reproduction and distribution of the work by others. In Australia, published or unpublished works that are typically copyrightable include:
- Literary works, including computer programs and
- Musical works, including any accompanying
- Dramatic works, including any accompanying
- Pantomimes and choreographic
- Pictorial, graphic, and sculptural
- Motion pictures and other audiovisual
- Architectural works and certain other intellectual
Copyright protection exists from the time the work is created in ﬁxed form. The fixed form may not be directly observable; it can be communicated with the aid of a machine or device. The copyright in the work of authorship immediately becomes the property of the author who created the work. Copyright is secured automatically when the work is created, and the work is created when it is ﬁxed in a copy or phono- recorded for the ﬁrst time. Copies are material objects from which the work can be read or visually perceived directly or with the aid of a machine or device. A copyright notice can be placed on visually perceptible copies. The copyright notice should have the word Copyright, the abbreviation Copr., or the symbol © (or ® for phonorecords of sound recordings); the year of ﬁrst publication; and the name of the owner of the copyright.
A patent for an invention is the grant of a property right to the inventor, issued by the IP AUSTRALIA. The term of a new patent is 20 years from the date on which the application for the patent was ﬁled in Australia or, in special cases, from the date an earlier related application was ﬁled, subject to the payment of maintenance fees. The IP AUSTRALIA patent grants are effective only within Australia. The patent law states, in part, that any person who "invents or discovers any new and useful process, the machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent," subject to the conditions and requirements of the law.
The patent law speciﬁes that the subject matter must be "useful." The term useful refers to the condition that the subject matter has a useful purpose and must operate. You cannot patent laws of nature, physical phenomena, and abstract ideas. A complete description of the actual machine or other subject-matter is required to obtain a patent.
The IP AUSTRALIA offers standard and innovation patent applications. A standard patent application is for the full patent, which lasts 20 years. The innovation patent application is for a temporary patent that lasts for one year.
Standard Application for a Patent
According to the IP AUSTRALIA, a standard application for a patent is made to the assistant commissioner for patents and includes:
- a written document that has a speciﬁcation and an oath or declaration,
- a drawing in those cases in which a drawing is necessary, and
- the ﬁling fee.
All application papers must be in the English language, or a translation into the English language is required. All application papers must be legibly written on only one side by either a typewriter or mechanical printer in a permanent dark ink or its equivalent in portrait orientation on ﬂexible, strong, smooth, nonshiny, durable, white paper. Present the papers in a form having sufﬁcient clarity and contrast between the paper and the writing to permit electronic reproduction. The application papers must all be the same size, either 21.0 cm by 29.7 cm (DIN size A4) or 21.6 cm by 27.9 cm (81¤2 3 11 in.). Application documents must have a top margin of at least 2.0 cm (3⁄4 in.), a left-side margin of at least 2.5 cm (1 in.), a right- side margin of at least 2.0 cm (3⁄4 in.), and a bottom margin of at least 2.0 cm (3⁄4 in.), with no holes made in the submit- ted papers. It is also required that the spacing on all papers be 11¤2 or double spaced, and the application papers must be numbered consecutively, centrally located above or below the text, starting with page 1. All required parts of the application must be complete before sending the application, and it is best to send all of the elements together. The IP AUSTRALIA numbers all applications received in serial order and the applicant will be informed of the application serial number and ﬁling date by a ﬁling receipt.
Innovation Application for a Patent
If you want protection for an invention with a short market life that might be superseded by newer innovations, such as computer-based inventions, an innovation patent is worth considering.
An innovation patent lasts up to eight years and is designed to protect inventions that do not meet the inventive threshold required for standard patents. It is a relatively quick and inexpensive way to obtain protection for your new device, substance, method or process.
The innovation patent requires an innovative step rather than an inventive step. An innovative step exists when the invention is different from what is known before, and the difference makes a substantial contribution to the working of the invention. The innovation patent protects an incremental advance on existing technology rather than being a groundbreaking invention.
An innovation patent is usually granted within a month of filing the complete application. This is because there is no examination before it is granted.
An innovation patent is only legally enforceable if it has been examined by us and found to meet the requirements of the Patents Act 1990, and has been certified. Examination of an innovation patent will only occur if requested by the patentee, a third party or if the Commissioner of Patents decides to examine the patent. The patentee will not be required to pay for examination until it is requested.
Phase-out of the innovation patent
The Australian Government has begun the process of phasing out the innovation patent with the passing of legislative amendments. This means:
- The last day you can file a new innovation patent will be 25 August 2021.
- Existing innovation patents that were filed on or before 25 August 2021 will continue in force until their expiry. This will ensure current rights holders are not disadvantaged.
The Government remains committed to dedicated support services to help small and medium enterprises (SMEs) navigate the intellectual property (IP) system. Australian SMEs will receive further dedicated support, with an SME case management service, the SME fast track service, a dedicated outreach program and online portal, to be launched as the innovation patent is phased out over the next 18 months.
The quick guide to innovation versus standard patents
|Innovation patent||Standard patent|
|Your invention must:||Be new, useful and involve an innovative step.||Be new, useful and involve an inventive step.|
|The application should include:||A title, description, up to five claims, drawings (if applicable), an abstract and forms.||A title, description, any number of claims, drawings (if applicable), an abstract and forms.|
|A patent is granted if:||The application satisfies formality requirements (note: a 'granted' innovation patent cannot be enforced unless examined).||The application is examined and found to satisfy the relevant requirements of the Patents Act 1990.|
|Examination:||Optional. The examination can be requested by you or anyone else.||Mandatory. The relevant requirements of the Patents Act 1990 must be met before a patent is granted. Can only be requested by the applicant.|
|Certification:||Is given if the innovation patent complies with the relevant requirements of the Patents Act 1990 in the examination. Only after certification can the patent be enforced.||N/A|
|Publication in the Australian Official Journal of Patents:||At grant and again at certification.||Eighteen months from earliest priority date and again at acceptance.|
|Protection period:||Up to eight years if annual fees are paid.||Up to 20 years if annual fees are paid (or up to 25 years for pharmaceuticals).|
|How long does the process take?||Approximately one month for the grant. Six months for examination if you make a request.||Six months to several years depending on circumstances.|
There is no requirement for a specific number of views. However, you must provide sufficient views to fully display your design, which usually requires a number of views.
We prefer traditional views (front, side and top) but will also accept perspective or isometric views. (See image).
All views must show exactly the same design. This particularly applies to colour, as colour is usually a visual feature of the design.
Key points for drawings
- be accurately drawn, not sketches, with well-defined line-work
- only show the design in question and no descriptive wording or dimensions. However, labelling of views such as 'perspective view' or 'rear views' is acceptable
- on A4 size paper if lodged by post
- use broken or dashed lines when highlighting:
- elements of the product other than those bearing the visual features of the design
- parts of the design that are referred to in the statement of newness and distinctiveness
- boundaries, such as a pattern applied to part of a surface, stitching and perforations
- features that establish an environmental context.
Shading and cross-hatching can be used to show a visual feature of the design.
Key points for photographs or digital images
Photographs or digital images should:
- be clear originals
- show the product against a plain contrasting background and avoid matter not relevant to the design
- be A4 or mounted on A4 white paper if lodged by post.
If it's a multiple design application, then each design should be clearly indicated, with each design shown on a separate sheet.
Sometimes a design is applied to a part of a complex product, and that part can be readily assembled and disassembled from that product. If the component part qualifies as a product, then broader protection may be gained by defining this as a stand-alone part.
According to the IP AUSTRALIA publication Basic Facts About Registering a Trademark, a trademark is a word, phrase, symbol or design, or combination of words, phrases, symbols, or designs that identiﬁes and distinguishes the source of the goods or services of one party from those of others. A service mark is the same as a trademark except that it identiﬁes and distinguishes the source of a service rather than a product. Normally, a mark for goods appears on the product or on its packaging, whereas a service mark appears in advertising for services. A trademark is different from a copyright or a patent. As previously explained, a copyright protects an original artistic or literary work, and a patent protects an invention.
Trademark rights start from the actual use of the mark or the ﬁling of a proper application to register a mark in the AUSTRALIA stating that the applicant has a genuine intention to use the mark in commerce regulated by the AUSTRALIA. Federal registration is not required to establish rights in a mark, nor is it required to begin use of a mark. However, federal registration can secure beneﬁts beyond the rights acquired by just using a mark. For example, the owner of a federal registration is presumed to be the owner of the mark for the goods and services speciﬁed in the registration and to be entitled to use the mark nationwide. Generally, the ﬁrst party who either uses a mark in commerce or ﬁles an application in the AUSTRALIA has the ultimate right to register that mark. The authority of the AUSTRALIA is limited to determining the right to register. The right to use a mark can be more complicated to determine, particularly when two parties have begun use of the same or similar marks without knowledge of one another and neither has a federal registration. Only a court can make a decision about the right to use. Federal registration can provide signiﬁcant advantages to a party involved in a court proceeding. The AUSTRALIA cannot provide advice concerning rights in a mark. Only a private attorney can provide such advice.
Trademark rights can last indeﬁnitely if the owner continues to use the mark to identify its goods or services. The term of federal trademark registration is ten years, with ten-year renewal terms. However, between the ﬁfth and sixth year after the date of initial registration, the registrant must ﬁle an ofﬁcial paper giving certain information to keep the registration alive. The registration is cancelled if this is not done. Please conﬁrm speciﬁc trademark details and requirements with the AUSTRALIA.