AntenN recently signed a commercial license agreement with this company in Victoria to sell its antenna products for the Australian customers. To ensure that this product meets the criteria for Motor Vehicle Standards act of Australia and to ensure the required consumer satisfaction, my team designed and prototyped a new antenna for the Australian market. However, a rival Australian company- Ray Com- has since responded to the market demands and is selling antennas. Their aim is to produce antennas that conform to the Australian market standards and requirements, thereby posing a significant threat on our IP. There are different scenarios where AntenN may lose IP in Australia.
If the Company Doesn’t Own the Patent for the New Design and Prototype in Australia
First scenario is if the IP is not registered in Australia so that the company neither owns the new antenna design nor the prototyped design. IP is protected by law in the form of registered patent, designs, trademark, geographical indicators and PBR. It is always important for any business or person to register its intellectual property with Australian authorities in order to enjoy the benefits and protection accorded by statutes [1]. Failure to register the patent for these inventions simply means a lack of ownership by the inventors. Therefore, if Ray Com or any other competitor in Australia goes ahead and registers such an antenna invention first, they assert and acknowledge ownership of the invention.
IP rights are territorial and that means obtaining a patent within a particular locality does not guarantee international protection [2]. AntenN’s acquisition of a patent in China for the antenna invention does not give protection in Australia but only in China. There is the need for application for a patent in Australia for the antenna invention.
It is therefore paramount that the two business partners forge a quick patenting strategy that would ensure ownership of the invention and the prototype. For the invention by AntenN, the Victoria-based company can register for the patent as an intermediary on behalf of AntenN [2]. The requirement for registration will be an Australian address as well as the address for correspondence, then making an application for a provisional patent to the Commission of Patents [1]. The application will constitute the provisional specification alongside a complete patent request and the filing fees. This will be the fastest way of obtaining patent for the antenna invention in Australia. As for the prototype, the fastest way to go about it would be by registering for a joint patent as provided in section 63 of the Patents Act 1990 [3]. This is made possible by striking a documented agreement between AntenN and the company. Since there are joint creators for of the prototype, the agreement should expressly address ownership proportions, rights and exploitation of the IP [4]. However, AntenN can also choose to make a Patent Corporation Treaty (PCT) application for a standard patent as provided in Section 29 of the Patents Act [3]. The PCT provides the only ideal protection of patents at an international stage, but only for contracting states.
If the Company’s Trade Secrets are Leaked
The Antennas that are highly efficient and low in cost of production is ideally what every company, within the industry, desires to produce. The information owned by AntenN in either formula, pattern or data compilation, which ensures production of such an efficient device, is valuable and secret to the company, much as the information relating to the prototype. There is an overriding responsibility on the part of the company to ensure that secrets of manufacture are safeguarded. Behr and Slater put it this way: “If your IP is stolen by ne’er-do-wells, catching them is hard, prosecuting them is harder, and getting the stolen information back — putting the proverbial cat back in its bag — is usually impossible.” [3] Failure to have measures towards protecting trade secrets is a risk to losing these secrets to competitors.
In order to mitigate the possible loss of IP due to loss of valuable information to the public or competitors, it would be wise to educate team members on the importance of IP rights [1]. The aim is having a framework which avoids leakage in every possible way since the secret is known only to members of the firm. Therefore, the best protection of trade secrets is to have highly motivated workers who desire a long term career with the company. A well thought out retention policy will also help ensuring that workers are not leaving for competitors. Contracts with workers should unequivocally warn against leaking any information to the public or competing firms. Additionally, it should be stated that workers will not be allowed to work with a competing firm in cases of contract termination.
If the Invention was in Public Use
If the invention of the antenna was in public use or commercially exploited prior to it being brought up by AntenN in Australia, then it risks losing its IP rights. Foreign rights will be lost immediately if it is discovered that Ray Com, or any other competitors in Australia, had already been making antennas and supplying them to consumers, even if it had not registered such under patent. The presumption is that AntenN is no longer the sole owner and inventor of the device, a condition which is a prerequisite for being accorded a patent in Australia. A patent can only be granted if the invention is new beside it being useful, not obvious and not a natural object [8]. An already existing invention is not eligible for registration as a patent.
If this is the case, then AntenN will have a significant burden to prove that they are original owners of the invention. Undertaking a thorough search of registered patents will aid in knowing the particular company that brought the invention to the public domain. Information, including contact details, about patent, trade mark, design or PBR applications and registrations is available online [2]. With the aid of a legal professional, the company can undertake a search, navigating the IP registration database to realize which company is responsible for the patent. This will help trace how long the invention has been in the market. Knowing this time frame is important as it reveals whether the adoption came after it had already been incepted in China. For instance, if the company started using it a few months ago and AntenN has been using it since two years back, then it means that the original owners of the innovation are AntenN. This scenario can only be negotiated in a court of law where the judge will be required to issue injunction orders to the company which is utilizing this invention.
Finally, AntenN would lose its IP rights in Australia if it does not conform with the requirements for application by international firms, including the standards set by the Motor Vehicles Standards act of Australia.
Any of the aforementioned scenarios would make it possible for AntenN to lose IP in Australia. First is if AntenN does not own the patent for the innovation, which is a risk on its own considering the presence of a competitor like Ray Com. The company will have to undertake a quick application to the Commissioner of Patents for a provisional patent. The company also risks losing patents in trade secrets and this can be best hindered by creating an environment of confidentiality between team members. Finally IP rights can be lost if the invention is in public use. This can only be tackled by bringing the matter before an IP court and proving that AntenN is indeed the original owner of the publicized patent.
Would it be possible to stop Ray Con?
It is not possible to stop Ray Con if they are aiming to genuinely build their own product for Australian market. There is a home advantage scenario in Australia, whereby the government’s agenda is to actively assist Australian corporations to compete with foreign firms and create jobs [10]. To complement this agenda, IP Australia’s strategy would be to ensure the IP system efficiently and effectively serves Australian organizations to achieve these outcomes. Genuine building of an invention or innovative idea is entirely encouraged by the government. No one will be barred from coming up with an invention that is set to aid the public. At this point in time, there is a minimal difference between the protection of an IP right and encouraging the diffusion of ideas and information to spur further inventions. Notably, a progression of an already set up idea cannot be termed as a patent infringement. So that even a little twist on AntenN’s invention will probably make a totally different invention and Ray Con the original owners of their own invention. There will be a great burden of proof on the complaining party to show that the motives of Ray Con are focused at patent infringement other than facilitating an innovative course. In Australia, inventors are increasingly filing for IP protection outside of their country of origin and registering for patent or other rights with multiple IP offices [1]
References
[1] Business & IP Centre, “Why you need to protect your Intellectual Property?,” [Online]. Available: https://www.bl.uk/business-and-ip-centre/articles/why-you-need-to-protect-your-intellectual-property. [Accessed 20 Aug 2018].
[2] Bodkin and L. Collins, Patent Law in Australia, Thomson Reuters, 2014.
[3] IP Australia, “Patents Basics,” 2016. [Online]. Available: https://www.ipaustralia.gov.au/patents/understanding-patents/patent-basics. [Accessed 20 Aug 2018].
[4] J. moran, “Understanding and Resolving IP Address Conflicts,” Practically networked, 2018. [Online]. Available: https://www.practicallynetworked.com/networking/061407ip_conflicts.htm. [Accessed 20 Aug 2018].
[5] Patents Act, 1990.
[6] Queensland Government, “Your rights as a joint owner of intellectual property,” [Online]. Available: https://www.business.qld.gov.au/running-business/protecting-business/ip-kit/browse-ip-topics/your-rights-as-a-joint-owner-of-intellectual-property. [Accessed 20 Aug 2018].
[7] A. Behr and D. Slater, “How to protect Intellectual property,” cso, 2017. [Online]. Available: https://www.csoonline.com/article/2138380/loss-prevention/how-to-protect-intellectual-property-tips-to-keep-ip-safe.html. [Accessed 20 Aug 2018].
[8] M. Lloyd, “Intellectual Property Hands off my IP,” Australian Institute of Company Directors, 2008. [Online]. Available: https://www.companydirectors.com.au/director-resource-centre/publications/company-director-magazine/2000-to-2009-back-editions/2008/august/intellectual-property–hands-off-my-ip-aug-08. [Accessed 20 Aug 2018].
[9] W. v. Caenegem, Intellectual property law in Australia, Kluwer Law International, 2010.
[10] IP Australia, “IP – Your Business Edge,” 2015. [Online]. Available: https://www.ipaustralia.gov.au/tools-resources/interactives/ip-your-business-edge-issue-02-2015. [Accessed 20 Aug 2018].
[11] IP Australia, ” IP Australia and the future of intellectual property: Megatrends, scenarios and their strategic implications.,” 2017. [Online]. Available: https://www.ipaustralia.gov.au/sites/g/files/net856/f/ip_australia_and_the_future_of_intellectual_property.pdf. [Accessed 20 Aug 2018].
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