Intellectual property defined
Intellectual property (IP) is a term which refers to the ownership of an intangible thing – the innovative idea behind new technology, products, processes, designs or plant varieties, and other intangible things such as trade secrets, goodwill and trade marks.
Although intangible, the law recognises intellectual property as a form of property which can be sold, licensed, damaged or trespassed upon. It is important that both the scope and ownership of intellectual property are clearly defined to enable the legal rights of the owner to be enforced. At the same time people need to know just how far they can go before they overstep the boundaries and infringe the intellectual property rights of others.
This is made possible with patents, design registrations, copyright protection, trade mark registrations, and plant variety rights – all of which have a definable scope and duration.
A patent is a proprietary right in an invention. It provides the owner with the exclusive right for up to 20 years to make, sell or use a product or process. In exchange for this monopoly, the patent is published so others can see how the invention works and build on that knowledge. The patented invention is also made available to the public to use once the patent lapses. To be patentable the subject matter of the application must be novel (i.e. new), inventive, and must have utility (i.e. be useful).
A design registration provides protection for aspects of the appearance of an article, such as its shape, configuration, pattern or ornamentation. Unlike patents, a design registration does not protect functional aspects of an article unless these aspects also contribute to its aesthetic appearance. As most manufactured articles involve an element of designer choice, design protection is generally available. Sometimes, for simple objects, both patent and design registration is recommended.
A trade mark may comprise any marking such as a word, phrase, symbol, picture or any combination of these. A trade mark can also be a colour, label, shape or even a sound or smell if capable of being represented graphically. The purpose of a trade mark is to indicate a connection between certain goods or services and the trade mark owner.
Copyright is a property right which automatically exists in certain categories of original works. There is no requirement to register copyright. Copyright does not extend to ideas. It protects the particular way in which an idea is expressed. Copyright can be used to prevent one party from copying the work of another and is a useful supplement to registered intellectual property rights such as patents, designs or trade marks.
Plant Variety Rights
It is possible to register and protect new plant varieties in New Zealand and Australia. This protection extends to virtually any kind of plant which fulfills the criteria of being new, distinct, homogeneous and stable. The monopoly afforded to a plant variety right owner includes the exclusive right to produce propagating material of the protected variety. In some cases the monopoly extends to the fruit, flowers or other products of the variety for sale.