With the Government’s recent focus on innovation, including the unveiling of the National Innovation and Science Agenda, it is a promising time to be a start-up or innovation entrepreneur. The agenda, among other things, includes multiple initiatives and programs designed to promote investment in innovation; strengthen collaboration between businesses, universities and scientific institutions; develop and attract skilled and talented people; and improve the government’s ability to support science and innovation.
Nevertheless, as a patent attorney who regularly assists small businesses in obtaining intellectual property (“IP”) protection, I am continually surprised at how reluctant start-ups or innovation entrepreneurs are in investing time and money in protecting their ideas, which, in many instances, forms the cornerstone of their business.
Typically, such start-ups or innovation entrepreneurs focus on advertising their ideas in an effort to attract investors and potential customers. In most instances, IP protection is not even on their list of priorities until they realise someone is copying their idea. From an IP protection perspective, this represents a “cart before the horse” scenario, which ultimately can lead to the loss of any IP rights in the idea as most countries demand that the idea not be publicly disclosed prior to filing of some form of IP protection.
Fortunately, in many instances, all is not lost, and it is possible to obtain some form of patent protection for their idea utilising grace period provisions against the public disclosure of their idea to obtain valid IP rights. For example, countries such as Australia, the US, Canada and Japan provide such grace period provisions. However, it is important to note that not all countries provide grace period provisions, meaning the ship has sailed if the start-up or innovation entrepreneur requires patent protection in a country without a grace period provision.
It is also important to note that Australian IP law does not provide a grace period provision for obtaining design protection. This means if the idea resides entirely in the visual appearance of a product, which would best be protected by way of design protection, you may face an uphill battle in obtaining patent protection for the idea.
From a professional perspective, the most heart breaking situation is when too much time has elapsed since the first public disclosure of the idea that it is no longer possible to obtain valid IP protection for the idea, even under the grace period provisions. Under Australian patent law, the grace period is 12 months from the first public disclosure. This means that a non-provisional patent application must be filed within 12 months of the first public disclosure if valid patent protection for the idea is to be obtained.
The best advice I can provide is “make an appointment with your patent attorney at the beginning”. If your idea is the cornerstone of your business, it makes sense to protect your cornerstone. Public disclosure of your idea, even to friends, can be terminal to obtaining valid IP protection.