3 Ways To Protect Your Original Idea
George Raptis
Once you have landed on a new idea, you might begin to consider the legal options available to protect your idea from being copied by others. It is important to note, however, that intellectual property law cannot protect an original idea alone. Rather, legal protections can only protect how you express your idea. This article outlines:
- three types of protections available;
- what materials can be protected; and
- how to apply for these protections.
Patents
A patent is a type of intellectual property that gives its owner a legally enforceable right to exclude others from making, using or selling their innovative device or process. In this sense, a patent can:
- give you exclusive commercial rights to your innovation;
- allow you to licence someone else to manufacture your invention on agreed terms; and
- allow you to pursue legal action against a person who uses your patented invention without your permission.
What Can I Patent?
Patents can protect a wide range of inventions, ranging from computer software to business methods, biological inventions and microorganisms. However, patents cannot protect artistic creations, such as books or songs. These materials are not inventions for the purpose of patent protection. However, you can obtain protection of these materials under copyright law.
How Do I Apply for a Patent?
IP Australia files and processes all Australian patents. In Australia, there are two types of patents. These are:
- standard patents; and
- innovative patents.
It is important to note that innovative patents will no longer be issued after 25 August 2021. If you have acquired an innovative patent before 25 August 2021, it will remain valid until its expiry date. Otherwise, standard patents will now provide the most comprehensive protection for your innovation.
A standard patent provides protection over your invention for up to 20 years. Before IP Australia can issue a patent, you must submit an application which they will review. For an invention to qualify for a standard patent, the innovation must:
- be original, meaning the invention is different from existing technology;
- require an inventive step, meaning it is not an obvious thing to do for someone experienced in the field of the invention; and
- be able to be manufactured or used in industry.
Copyright
Copyright can provide protection for most creative materials. It ensures that other people cannot copy or communicate your original material without your permission. Copyright protection means that:
- others cannot reproduce your original work without your permission;
- you can agree to someone using your copyrighted material by granting them a copyright licence; and
- you can take legal action if a person infringes on your copyright.
What Can I Copyright?
Original materials that you can copyright include novels, drawings, music, photographs, graphic designs and house plans. How long the copyright protection lasts will depend on the form of these original works.
For example, copyright can protect artistic work for 70 years, whereas copyright protects published works for only 25 years.
As previously mentioned, copyright cannot protect ideas, styles or techniques. For example, you cannot protect the general ‘feel’ of a published work with copyright.
How Do I Apply for Copyright?
In Australia, copyright protection does not require registration. Instead, it automatically applies to original ideas when you put them into material form. For example, copyright will only protect the idea for a novel once it is written down into a transcript.
Copyright owners can also brand their word with copyright notices. These notices typically include the symbol ‘©,’ the creator’s name and the date that the copyrighted material was made.
Trade Marks
Trade marks are a useful way of protecting your original material if you intend to manufacture and sell your innovation. A registered trade mark provides owners with the exclusive right to use, license and sell their trade mark. Trade marks can:
- help differentiate your innovation from other products available in the market;
- prevent others from using your trade marked innovation; and
- allow you to pursue legal action against persons who infringe on your trade mark rights.
What Can I Trade Mark?
You can register trade marks for a variety of brand elements, including the:
- name of your product;
- unique shape of your product;
- colour of your product; and
- scent of your product.
How Do I Apply for a Trade Mark?
In order to get a registered trade mark, you have to apply via IP Australia. Alongside your personal information and a description of the product that your trade mark will protect, an application for a registered trade mark will require you to specify:
- the type of trade mark you are applying for;
- a trade mark check to ensure that someone else has not already registered the trade mark; and
- the class of goods or services that your trade mark will apply to.
It is important that you follow the registration process closely in order to avoid further costs for mistakes made in the application.
Key Takeaways
Although intellectual property law cannot generally protect an original idea alone, it can protect the way that you express your idea. Depending on the form in which that idea materialises, you can protect your innovation from being copied by other through patents, copyright and trade marks. If you require assistance in protecting your trade mark, contact our experienced trade mark lawyers on 1300 657 423 or fill out the form on this page.
Frequently Asked Questions
Often, innovative ideas might be shared with employees or a business partner. In these instances, it would be wise to have them sign a confidentiality agreement. A non-disclosure agreement (NDA), or a confidentiality agreement, ensures that the other party does not use the information for their own purposes.
Since copyright protection automatically applies to original ideas when they are put into material form, the material can still be protected despite not bearing a copyright notice.
Trade marks last for 10 years although they can be renewed before their expiry date. If a trade mark owner has not used their trade mark during this period, there is a risk that the mark can be removed for non-use.