What is IP?

A patent is a type of intellectual property right that gives its owner a legal right to exclude others from making, using and selling their invention in a given country or region for a limited period of time, in exchange for publicly sharing their knowledge about the invention.

A patent is a form of registerable IP right, meaning an application for patent of the invention is typically filed but not enforceable (or pending) until it passes an examination and is granted by a patent office in the given country or region.

The patent application will share the inventor(s) knowledge of the invention, and will eventually be published for all to see. The patent application will include a set of claims, which set out the scope of the monopoly being sought in respect of the invention.

Examination of a patent application typically involves an assessment (i.e. the examination) by a specialist Patent Examiner of the claimed invention’s novelty (or newness) and inventiveness (or non-obviousness).

A patent application and granted patent in-turn must be maintained by paying renewal fees if it is to remain in force for the maximum possible term, but can be allowed to lapse sooner if no longer required.

A ‘design’ is the overall visual appearance of a product such as its shape, configuration, pattern and ornamentation.

A registered design is a form of registrable IP right where the design has been assessed as being new and distinctive when compared with earlier designs that are in the public domain.

A registered design cannot be used to protect how a product works, its composition or internal structure.

Plant Breeder’s Rights (PBR) are a type of registrable IP right that provides protection for plant varieties. The purpose is to encourage plant breeders to invest their time and effort developing new plant varieties for the public. In exchange, the plant breeder receives a limited period of protection, during which they can prevent others from, for example, selling, importing or exporting their plant variety. The length of protection is 25 years for vines and trees, and 20 years for everything else.

For a plant variety to be registrable and hence protectable under PBR, it must satisfy certain criteria. The plant variety must have a breeder, meaning it has been produced deliberately and not simply discovered in nature. The variety must also be distinct, uniform and stable. “Distinct” means that the variety must be distinct from the closest known relatives, which are usually the parents used in the breeding program. “Uniform” means that when many plants of the variety are grown in a field, there will be minimal variation between plants. “Stable” means that over successive generations, the characteristics of the plant variety do not change.

While others are not allowed to, for example, sell, import or export a protected plant variety, another person (such as a plant breeder) is still allowed to use that variety for breeding purposes. This means that the PBR system encourages the continued development of new plant varieties.

Plant breeders can apply to IP Australia for protection of a new plant variety. The application must be filed within one year of a variety being exploited (for example, sold to a customer) in Australia. The application process involves a two-part application. Application part 1 is a simple application with a description of the new plant variety and the breeding process used. Application part 2 requires a growth trial to prove the plant variety is distinct, uniform and stable. The growth trial can take one or up to several years, depending upon the plant species. An external consultant (known as a Qualified Person) with experience in the particular plant species is retained to assist in the management of the growth trial.

An Australian application part 1 can be used as the basis for obtaining corresponding protection of the new plant variety in other countries which are members of the International Union for the Protection of New Varieties of Plants (UPOV). As of 22 February 2021, there were 77 countries which were members of UPOV (see, List of UPOV Members at https://www.upov.int/members/en/). To extend PBR protection to other countries, an application must be filed in each of those other countries within 12 months of the Australian application part 1.

A domain name is the online address for a business and often corresponds to the business name in order to assist internet users to locate the business’ website (e.g. madderns.com.au). The primary function of a domain name is to provide an easily recognisable and memorable name to a numerically-addressed internet resource (usually comprised of a long string of numbers). The global domain name system is managed by the Internet Corporation for Assigned Names and Numbers (ICANN), a non-profit organisation that creates and implements policies governing domain names.

The right to use a domain name is delegated by Domain Name Registrars, which are accredited and authorised by ICANN to sell domain names and as such is a type of registrable IP right. With the growth of internet based businesses, domain names are increasingly recognised as a valuable business asset.

Copyright is a type of IP right designed to protect original literary, dramatic, musical and artistic works from being copied. Copyright protection is automatic upon creation with no formal registration process required. The term of protection is generally from the date of creation of the work to 70 years after the death of the author.

Importantly, and unlike patent protection (as an example), copyright protects the form of expression of an idea as opposed to the idea or concept itself. The references to “literary” and “artistic” works are given an expansive interpretation.

As an example, a literary work could encompass computer programs and an artistic work would likely include engineering plans and drawings.

In general, whether copyright subsists in a work is not related to its merit as piece of artistic expression.