Fruits of the mind: IP in the 21st Century

Derek Baigent is a Principal at Griffith Hack, Patent, Trademark and IP Lawyers. Baigent has represented companies across a broad range of industry sectors including electronics, telecommunications and fashion, which often involves European, US and South East Asian companies in multi-jurisdictional intellectual property disputes.

In this interview, Joan-Maree Hargreaves talks with Baigent about protecting designs in the 21st Century in light of the advent of digital file-sharing and the internet as well as the issues surrounding new technologies and processes such as 3D printing and mass-customisation.

JH: The concepts surrounding intellectual property can be overwhelming and confusing. Can you tell me the difference between a copyright, a trade mark, intellectual property and a patent’

DB: ‘Intellectual property’ is an umbrella term associated with creative or innovative works that are sometimes referred to as ‘fruits of the mind’. It is a term that encompasses copyright, trade mark, patents, design and other rights.
Copyright protects the way in which an idea or information is expressed in a material form. For example, subject to certain limits, an artist of a painting, author of a paper or a recording artist will automatically be able to rely on copyright to prevent others from reproducing their material.
Trade marks can be words, phrases, letters, numbers, sounds, smells, shapes, logos, pictures, aspects of packaging or a combination of these that are used to distinguish the goods and services of one trader from those of another.
Patents are monopoly rights granted for any device, substance, method or process which is new and inventive. A patent is legally enforceable and gives the owner the exclusive right to commercially exploit the invention for the life of the patent.
Registered designs protect the overall visual appearance of a product including the shape, configuration, pattern and ornamentation which give it a unique appearance. A registered design gives the owner protection for the visual appearance of the product but not what it is made from or how it works.

JH: In brief, what is the process that a designer should undertake in order to ensure the ‘safe-keeping’ of their design’

DB: In order to obtain protection for their designs in Australia, it is strongly advisable that designers apply to have them registered with the Designs Office. After an examination and certification process, designers can then take action to stop other people using their designs.

JH: Can I make sure that someone in another country doesn’t copy my idea or design’

DB: Trade marks, patents and registered designs are all jurisdiction specific. That is, they only give rise to rights in the country (or countries) in which they are registered. Obtaining and maintaining such rights across multiple jurisdictions can be expensive. Rights owners therefore tend to limit obtaining protection to countries they consider to be their key markets.

JH: What about the recent development of mass customisation and 3D printing etc, can you foresee any issues surrounding this’

DB: If relatively low cost 3D printing becomes commonplace and is able to replicate physical objects to standards acceptable to average consumers, it is possible that industry sectors reliant on distinctive product designs may start to experience the same kinds of difficulties that have plagued the record industry and more recently the movie industry with the emergence of digital file-sharing and the internet. On a more positive note, the availability of such technology is already revolutionising the design process as it enables designers to rapidly visualise and prototype products which can significantly reduce development costs and the time taken to bring products to the market.

JH: With the theme for Sydney Design 2011 in mind – ‘Is old new again” – have the issues surrounding protecting designs and ideas changed much in recent years’

DB: Increased recognition of the value of intellectual property has driven an increase globally in both patent and design filings. Companies such as Apple who define themselves through their use innovative features, materials and designs will go to great lengths to protect their products and designs in the market place.

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