Reality Bites: 5 common myths about IP

Unsplash Mist Taduuda

Stanley Kubrick helped fake the moon landing. Walt Disney was cryogenically frozen. You can cure a hangover by drinking more. They say never to let the truth get in the way of a good story.

And there’s no shortage of myths and misconceptions about intellectual property (IP). I suppose these myths exist to dress IP up and make it appear interesting at parties. But rather than being entertaining, these misconceptions can add further confusion to an already complex topic. Let’s clear the air around some common misconceptions about IP.

1. Patents, Trade Marks, Designs, Copyright – it’s all the same

Potato, po-tah-to. Patents, trade marks, designs and copyright are often used incorrectly or interchangeably but in reality, each term refers to a separate and distinct concept. It’s also important to note that IP doesn’t refer to an idea alone but how the idea materialises and the form that it takes. It’s this form that may be protected through various rights such as patents, trade marks, designs or copyright.

Here’s some food for thought (pun intended):

  • A photo of a cake may be protected through copyright; but not the idea of taking the photo of the cake.
  • The cake is sold and marketed under a brand name; this name can be protected through trade mark registration.
  • The cake is produced using a new manufacturing method; this method may be protected by a patent.
  • The cake has an unusual shape and appearance; the unique design may be protected through design registration.

Knowing the differences between these concepts and how they are used, can help you decide which form of IP might be best for your business.

2. Filing your own application saves a bucket load of dosh

Why buy a dress when you can make your own and save a few bucks? I know If I made my own dress, it would probably look like this.

I often tell people that the Australian IP system will allow you to file your own patent, trade mark or design applications. But when there are issues with your application, the system will often abandon you like a date skipping out at the end of dinner, leaving you confused and stuck with the bill.

If the IP is crucial to your business, you’ll want to make sure that your strategy, the applications and eventual granted rights are in the best possible shape. And this is where it pays to have a professional heavy hitter in your corner. We help create the right IP strategies and applications, we go into bat for you when issues crop up and ultimately, we obtain value for your business. One of the biggest risks that most self-representing applicants run when preparing and filing their own applications, is that they can make mistakes or encounter issues that could cost them some or all of their IP rights. The potential short-term savings might cost you and your business more in the long-run.

And while I’m at it, let’s bust another common misconception: anyone can draft a patent application. Insert wrong answer buzzer. Patents are highly technical documents and worth more than the paper they’re written on – when prepared correctly by a skilled and qualified patent attorney. So, if it’s valid patent protection you’re after, avoid the DIY job; get yourself a patent attorney.

3. Kick back and let your IP rights do the work

Contrary to popular belief, filing an application doesn’t give you any rights. Once granted or registered though, you’ll have exclusive commercial rights. But these registered IP rights aren’t an automatic defence system or cash cow. IP assets form part of your business and their value is dependent on how you use, manage and protect them. Your amazing product or brand will remain a mystery without a marketing strategy. Buyers and investors won’t be lining up without sales or licensing arrangements in place. And you’ll be hard pressed to protect your patch of turf from imitators without being neighbourhood watch diligent.

The other school of thought is – why have IP rights if you don’t have money to enforce them? Yes – if you’re looking to sue someone for infringement, this can get pretty costly. But often having registered IP rights is enough to make competitors and imitators think twice about inviting a potential fight with the IP owner – avoiding the need to escalate into an episode of Suits. But don’t just think defensively – think commercially as IP rights can be  a really useful tool to attract investors too.

In the end, the value of your IP rights needs to be aligned with your business strategy and goals.

4. IP protection is global

“I’d like global IP protection please.” Normally manners will get you everywhere but in this case, it’s not going to get you “worldwide” protection. Unless of course you’re prepared to file and register your patent, trade mark or design in every country on earth. Unfortunately, there’s no mythical global IP unicorn. Registered IP rights are granted on a country-by-country basis. For example, having a registered trade mark here in Australia, doesn’t prevent someone in merry ol’ England from using the same or a similar brand. You’ll need to consider registration in the UK to have protection in that market. For the most part, the IP fundamentals are largely the same between countries. But when in Rome – each country has their own IP systems and laws and your applications will need to fall in line with the local practices and requirements. But again, this is where a qualified and experienced IP attorney can help and act as your IP TripAdvisor®.

5. IP is boring

Boring is a relative term. It’s all a matter of perspective. I love IP. And I think as business owners you will learn to love it too. Well maybe not love. But I hope that you’ll see IP in a different and more flattering light, when you understand the importance and value that it might add to your business. And if you’re still not convinced of the IP cool factor, maybe a little celebrity inventor endorsement might help.


Photo by Taduuda on Unsplash

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