An Exporters guide to IP - Intellectual Property

If you choose to register your IP, you must start in your home country, which means going through IP Australia (www.ipaustralia.gov.au). Registration also ensures that you are not infringing on existing IP as the prerequisites for filing a patent include that the product or process must be novel. If you are unsure of the value of patenting your IP, you may apply for a less costly provisional patent, which lasts for 12 months, while you assess the commercial worth of protecting your IP.

From registration with IP Australia, Williams asserts that going international is just a few steps away. "You register your trademark here, then afterwards you have an option to file an international application. IP Australia, through various treaties, has an administrative mechanism that enables relatively easy registration in the countries that you choose. They then review your patenting and make sure it's novel and it's going to be okay overseas," he explains. "The good thing about IP Australia is that they have experts in each area so if you have a medical device, they have experts who only look at medical device patents; they know what's going on and they know what's out there.

"At the end of that examination process you select which country or countries you want to register in. You can go directly to those countries but it's easier going through IP Australia. Then there's a further review process that those countries will do. Going through IP Australia is the simplest and the most cost-effective way, but it still can cost a lot of money," says Williams.

And that's only the upfront costs. "There's another lot that comes six months later in some countries and there's requisitions to attend to—some countries may or may not be happy with you and you have to deal with that."

IP Australia has a fee schedule set out for trademarks on its website, as does the World Intellectual Property Organization (WIPO; www.wipo.int), but it's hard to put a figure on the amount it will cost for patents because it differs with the complexity of your product, process or design and in which countries you intend to register as they all charge differently. Estimates put the process at several thousand dollars to move your IP up until the point of choosing countries, but Williams can't quote a figure because "it depends on how complex [your case] is".

Ability to enforce the law is also an important consideration. WIPO is the governing body that oversees IP protection internationally. It has an arbitration and mediation system that parties may choose to use should a dispute arise, which generally costs less than litigation. However, if the dispute enters litigation territory, Williams says businesses need to consider what they'll gain from legal action.

"The first part is 'can I afford to go through the legal process?' Most countries are up on their IP but you're then left with the legal system of the country when it comes to enforcement," he explains. "Enforceability means you have to have someone who has money on the other end, you need to be able to find the person who has actually infringed and if you can't find them or you can't find their assets—or they have no assets—then there's no point. Although, some companies want to make a point, they want to let the industry know that they'll attack for the principle of it, even if it costs them."

Two issues currently doing the rounds in the IP sector are piracy and ‘cybersquatting’. Piracy, says Williams, has almost single-handedly put IP in the international spotlight. "The burgeoning market in fake goods is of very significant concern and free trade agreements invariably have IP requirements." While there’s still a way to go to eradicate piracy, at least the issue has traction.

As for cybersquatting, WIPO seems to have taken care of that. Cybersquatting is when a company registers a variation of your trading name, or even a close misspelling, as a domain name. Says Williams, if the squatter is not trading under the domain, there is an argument that they don't actually own it. "You can go to WIPO and WIPO can say 'we force you to transfer the ownership of the IP to the people who actually own it'. Eighty percent of claims to WIPO result in the transfer of the name back to the right person."

It's a relief to know that IP laws are becoming more sophisticated all the time. The most important thing is to realise IP is an asset and to value that accordingly, even when selling your business. "They are a commodity, they do show a seriousness that increases the value of your business. If you're selling your company and you have three registered patents, that can be an asset and increase the amount of money someone would pay for your business. It's better than a business who says 'we're doing really well and we have three secrets'," explains Williams.