The Different Types of IP Advice

What this module is about

What is intellectual property (IP)?
The range of laws available to protect your IP.
Why you should protect your IP with IP rights.
Where to go for advice for your particular IP.
The type of questions to ask your adviser.

The Different Types of IP Advice

The value of your IP

IP is the result of your intellectual effort, inventions, research and development or creativity. Intellectual property rights (IPR) is an umbrella term used throughout the world to refer to a set of laws associated with providing exclusivity and ownership of innovations. IP rights formally recognise creative effort or commercial reputation and goodwill in the market place. Almost everything we use in our daily lives is the result of someone's clever thinking.

The Different Types of IP Advice

The laws protecting your IP

There is no one unified body of law, and those laws that do exist are often open to interpretation. However, IP rights give you the legal right to exploit your IP and help you prevent others infringing your IP.

There are eight different types of IP protection in Australia, each with its own legislation. These are:

Patents;
Trade Marks;
Designs;
Copyright;
Circuit Layout Rights;
Plant Breeder's Rights;
Confidentiality (Trade Secrets); and
Domain names.

These are discussed in detail in What IP means to you .

The Different Types of IP Advice

Why you need to protect your IP through IP rights

IP rights provide their owner with unique rights of commercial leverage in the marketplace and provide protection against competitors. As an IP owner, you can create relationships with others to commercialise your innovation and prevent others from exploiting your innovation without your permission.

For small businesses this protection can be the key to survival, if not prosperity. Smart exploitation of IP rights can bring lucrative business opportunities or enhance your profit potential.

Unless you protect your products or services under the IP law relevant to your innovation, your competitors may copy them without the fear of being sued. In doing this they piggyback on your intellectual effort and research funds to bring your innovation to market. This may leave you to compete only on price or service rather than product differentiation. Any costs incurred to make your goods and services different and/or well known would potentially be lost to your competitor.

Using IP as a business asset puts your business on a more secure grounding and may redefine the relationship you have with competitors, suppliers, staff, financiers and potential partners. The value of IP and its contribution to business success is increasingly being recognised by entrepreneurial business practitioners, financiers and the courts.

To use IP effectively you need to understand the various forms of IP that can be protected in Australia, the rationale behind each of these, and the ways each can be used to create competitive advantage. You should be aware of the potential opportunities as well as the limitations of IP.

Because IP laws provide pre-defined outcomes, you can use your IP contracts to provide considerable leverage in close, everyday relationships with partners, staff, suppliers, competitors and financiers.

The Different Types of IP Advice

Where to go for advice

Using IP skilfully generally requires the assistance of professional advisers who will help clarify and maximise your IP rights. It is vitally important that the advice you receive is from credible and experienced professionals.

The following table will help you choose the most appropriate adviser for your particular need.

Adviser	Issue	Notes
Management consultant	Business development Business planning Management restructuring Human resources	Management consultants can provide valuable strategic advice based on their understanding of the business environment in which your company is operating. Management consultants can help facilitate the strategic planning process from analysis through to planning and implementation. Management consultants can aid business development by helping you review the opportunities to expand your business in the light of market conditions, financial constraints, management relations issues, and external factors such as legislation and government development incentives. Management consultants can also help you build organisational competence and enhance the skills of your people. This includes providing valuable advice on the most appropriate management structure to achieve your objectives.
Marketing consultant	Corporate and product marketing Market segmentation	Marketing consultants can help establish market recognition for your company name, products and service as ‘marketing’ entities. This is done using methods such as market analysis, demographic research, and market niche strategies. Marketing consultants can also give you valuable strategic advice about developing on-going market driven performance measures.
Market researcher	Market research	Market research advice, often undertaken in conjunction with a marketing consultant, can help to identify a viable market for your product/service and clarify customer demographics, their needs and desires. It is vital that your investment in your products/services is also seen as valuable in the eyes of your customers.
Branding consultant	Corporate image Product branding Business naming	Branding consultants can add value to your business by helping to create a name/trade mark for either your company/corporate entity, or products/services. A name must be marketable and able to be protected in order to maximise the value and power that is associated with that name. Branding consultants help you create and implement a full corporate, product, services brand and image strategy in order to position you in your market as distinctive, unique and independent.
Graphic designer/Identity designer	Corporate image	Like branding consultants, graphic designers and identity design consultants create valuable IP for your business by creating an image for your company which can be trade marked.
Patent and trade mark attorney	Patents and trade marks	Patent and trade mark attorneys can help you create and protect valuable income-earning IP by providing a depth of national and international knowledge on how to register your specific forms of IP. You may need to seek the advice of a patent attorney at an early stage to ensure that your innovation can be patented and that you take the necessary steps to keep the innovation secure. You may need to take the advice of a trade mark attorney at an early stage, and before you have chosen your trade mark, in order to determine whether or not it can be registered.
Plant breeder qualified person	Plant breeder’s rights	To ensure technical rigour in granting plant breeder’s rights, innovators need to engage the services of an accredited Qualified Person (QP). The QP, in collaboration with IP Australia, accepts responsibility for all aspects of the comparative trial, including the choice of comparative varieties, experimental design, data collection, statistical analysis and preparing a description of the variety. There are more than 200 QPs in Australia and New Zealand, each of whom is accredited to consult on a range of plant species in which they have expertise.
Advertising agents and advertising media strategists	Advertising and media	Advertising agents and media strategists help to actively promote your company image, either independently or through advertising your products/services. They do this through research and planning and developing campaign strategies to position your company and product for maximum effect. To do this they may employ a mix of communication media such as: Print - newspapers and magazines; Television and radio; Outdoor advertising; Telemarketing; Event sponsorships; and The internet.
Franchising and export consultants	Licencing and exporting	Franchising consultants can help you create new streams of income from your IP by licencing it to third parties. Export consultants can expand your IP’s earning power, as well as that of your products and services, into new geographic and cultural areas.
Information Technology (IT) consultants	Data management, software and hardware. Integrated data networks.	IT consultants can help your company plan and build information structures to support your business by refining and speeding up the flow of information to help organise and leverage your IP assets.
Financial consultants, financial planners, advisers	Business funding Financial structure Venture capital investment	Financial consultants/planners and investment advisers can give you advice on funding requirements and proposed sources and structure of finance. IP protection can involve significant expense. Once you have established the costs involved, you should consult a financial adviser to carry out a cost/benefit analysis.
Industry specific advice	Research and Development (R&D)	Because your research and development activity creates much new IP, your choice of adviser is critical. Sources of advice will depend upon your industry sector.
Accountants/tax accountants	Tax and financial planning	Accountants are essential to any business, particularly since the introduction of the GST and quarterly reporting. They provide services and advice on a range of financial issues including helping you develop a financial plan and business plan, financial reporting, tax planning, investment advice, valuation services, cost/benefit analyses, export and import finance and potential expansion strategies, for your business. An accountant/tax accountant can advise on whether or not IP can be formally identified as an asset, and what value can be ascribed to it on your balance sheet. IP is an asset that attracts capital gains tax and stamp duty, depending on the circumstances. An accountant/tax accountant should also be consulted if you are considering selling, buying or licencing IP rights. For example, there are tax implications associated with royalties, which are normally viewed as income for tax purposes.
Commercial lawyers	Legal and business structure	A lawyer provides your business with a legal/ownership framework and structure that protects your business and its operations. A lawyer will also help establish a viable structure for potential joint venture companies.
Product Engineers	Production and testing of prototypes	Product Engineers will assist with the development of working prototypes. It is good business practice to have such a prototype to demonstrate your invention/ innovation to potential investors. This type of demonstration may also open up opportunities for joint venture partnerships. When employing the services of a product engineer it is important to have appropriate confidentiality agreements in place.

The Different Types of IP Advice

Questions for your adviser

Once you have selected the appropriate professional, then order your priorities. These will become clear as you work through the pre-planning process of your business plan (See Business planning ).

List your questions and categorise them to suit the right adviser;
Seek advice about ownership issues relating to IP and how this should be recorded;
Ensure that you both have a good understanding of the market potential of your invention/innovation. If you do not, discuss the steps you should take to develop this understanding;
Discuss options other than manufacturing and distributing the product/service yourself;
Make sure your name/trading name(s) are on the agenda for discussion. Ensure you discuss the difference between having a business name and a trade mark;
As IP protection can involve significant expense, discuss the value of employing professionals to carry out a cost/benefit analysis;
Trade mark advice should be taken at an early stage, well before a trade mark has been chosen, in order to determine whether or not it can be registered; and
Establish the costs and a budget to cover all your consultants' fees.

Some sample questions you may need to ask yourself and the other key people associated with your business are given in the table on Preliminary decisions regarding IP rights. It is presented in this manner to act as a guide in organising your questions and thoughts before seeing your consultant/s.

Remember that you know your business and what you want from it better than anyone else, so you should not shy away from actively managing your own IP. If you are not getting the answers you need, either demand more from your current adviser or find another who will actively involve you in the process.

Traditionally, understanding IP has been the domain of two professions, lawyers and patent attorneys, but this is changing. More and more professions are seeking to develop an understanding of IP - some professions are progressing faster than others. If you have an adviser that you feel comfortable with (regardless of his/her professional background) encourage him/her to help you develop a strategy to work through your IP issues.

Find out what type of adviser you need.

The Different Types of IP Advice

Summary of key concepts

What is intellectual property and why it should be protected?
There are 8 forms of protection for intellectual property in Australia.
When getting a product ready for market, there are a number of experts/advisers you may need to go to for assistance. Make sure you are prepared before you speak with them.
Do not be afraid to speak to people about your ideas/inventions if you believe that they have something to offer, BUT always make sure that you have appropriate forms of protection (eg. confidentiality agreements) in place with them.

The Different Types of IP Advice

Preliminary Decisions Regarding IP Rights

Issues for your consideration	Who can help you make them
What is the precise description of the good or service I am offering?	Business manager Management or marketing consultant
How do I define my market?	Marketing consultant
What element of reputation and/or added value do I bring to the project/business?	Business manager Management consultant
Can the value added to, or reputation in, my goods or services be protected by one or more IP rights?	Patent attorney Lawyer Business manager
If so, how do I secure these IP rights?	Patent attorney Lawyer
Should I look at protecting my IP outside Australia?	Patent attorney Lawyer
If not, am I prepared to operate in a price-driven market, and invest my time, money and effort with the risk of having competitors take that product and commercialise it themselves?	Accountant Management consultant
If I cannot afford to manufacture myself, what are my options?	Franchising and export consultants Patent attorney
What business structure should I use to do this?	Lawyer
Do I understand the relevance of the IP rights to my project/business?	Lawyer Patent attorney Business manager
Does each participant in the project/business understand the role of and their relationship with IP?	Business manager
How do I protect my IP in a commercial transaction?	Lawyer
How do I licence or transfer my IP?	Lawyer Patent Attorney
How much effort do I put into advertising my company and my products? At what stage do I start to do this?	Marketing consultant Advertising consultant
How important is it for my business to have a corporate image and how much time do I spend on this?	Management consultant Branding consultant