Types of IP protection
Intellectual property (IP) refers to creations of the mind, such as inventions, literary and artistic works, symbols, names, images and designs used in commerce. Almost every type of business has some kind of intellectual property. IP is divided into two categories:
- Category 1: inventions, trademarks, industrial designs, and geographic indications of source.
- Category 2: copyright of literary and artistic works such as novels, poems and plays, films, musical works, drawings, paintings, photographs, sculptures and architectural designs.
There are different types of IP protection depending on the form of IP being protected.
Provisional Patent
A provisional application provides patent pending protection for 12 months. During this period, the inventor/s can continue research and should seek professional advice on the best patenting option going forward. Commonly, the inventor/s will need to file a Patent Cooperation Treaty (PCT) patent application within the 12 month period (i.e. before the provisional application lapses), which claims ‘priority’ to the provisional application and describes any new developments to the invention. After this point, no new developments can be included.
Cost of an application is approximately $5,000+.
Patent Cooperation Treaty (PCT) Patent
A PCT application creates an easier avenue to obtain patent protection in over 140 countries through a single Receiving Office. It is not a worldwide patent. As part of the PCT process, an International Search Report (ISR) and Written Opinion is issued about 3 months after filing. These reports look for evidence of similar inventions to the one described in the inventor/s application. The report examines the application based on novelty, is it useful or practical, and the presence of an inventive step (is the difference between what is known and the invention an obvious step?). The reports provide useful guidance for deciding whether or not to continue with the patenting process. After receiving the International Search Report, the inventor/s (with approval by the SCHN Patent Office) can file a Demand for an International Preliminary Examination. This is an optional step which will allow the inventor/s to respond to the Written Opinion and make changes to their application before approaching individual countries. The inventor/s must file for a Demand prior to 22 months from the Earliest Priority (provisional) Date.
Cost of an application is approximately $10,000.
National Patent
Since the PCT application cannot lead to a worldwide patent, the inventor/s and their organisations will need to choose which countries to continue the patent process in by 30 or 31 months from the Earliest Priority Date, the exact period varying from country to country. At this national phase entry stage, the PCT application is essentially broken up into separate applications in countries or regions of the inventor/s and their organisation’s choice. Each country/region has different criteria of assessment, laws and costs involved in the patent process. To progress your application in Australia, for example, inventor/s need to apply for National Phase Entry in Australia.
Cost of applications vary at about $20,000-$30,000 per jurisdiction.
- Australia: up to $3,000 for filing and requesting examination and approximately the same amount for prosecution and acceptance.
- United States: up to $7,000 and anywhere from $5,000 (for simple prosecution) to $40,000 for a complex prosecution with requests for re-examination.
- Europe: up to $15,000 for filing and anywhere from $5,000 to $15,000 for prosecution.
A trademark is used to distinguish the goods and services of one trader from those of another. A trade mark is a right that is granted for a letter, number, word, phrase, sound, smell, shape, logo, picture and/or aspect of packaging. A registered trade mark is legally enforceable and gives you exclusive rights to commercially use, licence or sell it for the goods and services that it is registered under.
Cost can range up to $1000.
Copyright is the right that creators have to stop others from copying their creative works without their permission. Copyright is automatic. You don’t have to put a copyright notice on works, but it is a good idea. Copyright is not registerable IP.
Cost is free.
A trade secret may consist of any formula, pattern, device or compilation of information which is used in a business, and which may give an advantage over competitors who do not know the trade secret. A trade secret may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or even a list of customers.
Cost is free.