Industry Overview

Intellectual Property is the industry in which Xenith IP Group operates. The Group’s core business is to provide a comprehensive range of IP services including identification, registration, management, commercialisation and enforcement of IP rights, locally and internationally.

IP can generally be considered as the product of intellectual creativity. Such creativity finds expression in many forms including inventions, designs, brands and artistic works. IP rights similarly take a variety of forms including patents, trade marks, industrial designs, copyrights, plant breeder’s rights, circuit layouts and trade secrets. A number of these IP rights including patents, trade marks, industrial designs and plant breeder’s rights are subject to formal registration regimes, giving rise to limited monopoly protection under the relevant statutes.

IP is protected internationally by a network of country specific laws, international conventions, treaties and administrative bodies. In most cases, in order for IP rights to be effectively protected and enforced, they must be registered with the relevant government bodies, typically national IP offices, in accordance with specific statutory processes, on a country by country basis. Xenith IP Group assists its clients to navigate these processes and to secure effective IP protection under the relevant regimes, locally and internationally.

The different forms of IP are governed by statutes and regulations, which vary by the type of IP right and by jurisdiction. The most common forms of IP are outlined below.

The majority of Xenith’s services relate to registrable IP rights, in particular, patents, trade marks and designs.

Patents

A patent provides monopoly protection to safeguard technological innovation. The realm of patentable subject matter is vast, including

  • machines and devices
  • products and processes
  • formulations and compositions
  • medical methods of treatment
  • computer implemented inventions
  • pharmaceuticals and biological materials.

The primary criteria for patentability include novelty, inventiveness and practical utility.

  1. Standard patents are used to protect most inventions for a period of up to 20 years (or 25 years for certain pharmaceutical inventions). Innovation patents have a maximum term of eight years.
  2. Innovation patents are used to a substantially lesser degree, typically for inventions with a lower inventive threshold or shorter commercial life, or for strategic purposes in litigation.

Trade Marks

A trade mark is a sign or other device used to indicate and distinguish the trade origin of goods and services. Trade marks may take a variety of forms including brand names, stylised letters or words, logos, aspects of packaging, sounds, scents, colours and shapes. The owner of a registered trade mark has a legally enforceable right to exclude others from use of the trade mark within the relevant jurisdiction in relation to the goods or services covered by the registration. In Australia, the initial protection period for trade marks is 10 years. However, unlike patents, the initial protection period can be renewed indefinitely, subject to continued use.

Business Names

Business names provide an adjunct to the protection conferred by trade marks. Registration can be renewed indefinitely, subject to eligibility requirements.

Domain Names

Domain names now also form an important part of an IP portfolio. As with business names, they are an important adjunct to trade mark protection and often indicate trade source or origin. Domain names can also be renewed indefinitely, subject to eligibility requirements.

Designs

A registered design protects product aesthetics by conferring a monopoly right in the shape and configuration, or surface pattern and ornamentation, applied to a product. The scope of registrable subject matter is extensive, covering virtually any manufactured product or part with some physical characteristic that is new and visually distinctive. In Australia, the protection period for registered designs is 10 years, subject to renewal after an initial registration period of five years.

Copyright

Copyright protects original creative and artistic expression including music, literary and artistic works, performances, movies and films, photographs, technical drawings, business documents and computer software. Copyright arises upon creation of the relevant work, and is essentially a right to prevent copying as distinct from a monopoly right. In Australia, no formal registration process is required and the protection period generally extends for the life of the creator plus 70 years.

Circuit Layouts

Circuit layout rights, which protect the design of original circuits for computer chips, are protected by statute in Australia but are not subject to a formal registration regime.

Plant Breeder’s Rights

Plant breeder’s rights confer the right to control the production, sale and distribution of new plant varieties. In Australia, these rights are subject to a statutory registration system, which provides protection for 25 years in the case of trees and grapevines, and 20 years for other plant varieties.

Trade Secrets and Confidential Information

The law in most countries provides some protection to trade secrets and knowhow, as forms of confidential information. Trade secrets can include information, devices, processes or techniques pertaining to technical or commercial aspects of conducting business. Knowhow covers expert skill, information or a body of knowledge that is not readily available in the public domain. These forms are not registrable but are protectable to an extent for as long as they remain confidential.

Why is IP important?

Users of the various IP systems and regimes range from the largest national and multinational corporations and research institutes, through to small to medium enterprises (SMEs), innovative start-up companies and entrepreneurs. Xenith believes IP is an increasingly important driver of innovation, and an increasingly significant source of commercial value and competitive advantage for a broad spectrum of organisations and individuals, locally and internationally.

In order to protect their investment in research and development, many innovators will seek to take advantage of the monopoly rights conferred by registration of the resultant IP, including particularly by way of patents, trade marks and registered designs. IP protection enables companies to capture and more effectively exploit the benefits of often substantial investment in product or brand development. In the absence of IP registration in relevant markets, competitors may quickly erode the economic benefit of unprotected innovation or brand development through copying. For these reasons, Xenith believes the systematic development and protection of IP is often a crucial factor in the growth and development of innovators and the economies in which they operate.

A recent European study in relation to the relative economic importance of IP-intensive industries showed that approximately 39% of total economic activity in the European Union (amounting to approximately €4.7 trillion annually) is generated by IP-intensive industries and approximately 26% of all employment in the EU (around 56 million jobs) is provided directly by these industries, with a further 9% of all employment supported indirectly. A similar study in relation to the US economy concluded that IP-intensive industries accounted for approximately US$5.06 trillion in added value, or 34.8% of US gross GDP in 2010, directly supporting 27.1 million jobs and indirectly supporting a further 12.9 million jobs in the supply chain. This report notes in the summary of principal findings that “the entire US economy relies on some form of IP, because virtually every industry either produces or uses it” [1],[2].

[1] “Intellectual property rights intensive industries: contribution to economic performance and employment in the European Union”, Industry level Analysis Report, September 2013, European Patent Office, and Office for Harmonization in the Internal Market.

[2] “Intellectual Property and The U.S. Economy: Industries in Focus”, March 2012, Economics and Statistics Administration, and United States Patent and Trademark Office