Monday, 28 September 2015

Intellectual Property Matters for Woodworkers and other Craftspeople by Mark Wakeham

(From the September newsletter of the Victorian Wood Workers Association used with the permission of the author)

Intellectual Property (IP) is the rather pompous sounding general term used to describe the range of creative endeavours undertaken by people from all walks of life ranging from the Astrophysics scientist pondering the distant galaxies to the humble basket weaver running a cottage industry from their back shed.

Such creative endeavours go a long way to defining our humanity and span a vast range of activities. The potential value of creative thought has been recognised since time immemorial and, dating back to 1623, the Statute of Monopolies was drawn up to provide protection by way of the issue of a “letters patent” for inventions deemed to be a new manner of manufacture. It is if some interest that the Statute of Monopolies is still relevant to today’s patent laws; however a range of complementary additional laws have since been developed to assist in defining and protecting a range of intellectual property types in addition to patents for inventions.

In order to provide some guidance through the maze of IP laws that may be relevant to craftspeople I will commence these articles with a brief outline of the types of IP available and the relevant laws involved.

Intellectual Property Types

Intellectual Property, as its name suggests is a legally definable form of protection for the work resulting from intellectual endeavours. In order to serve this purpose, various pieces of legislation have been devised to protect aspects of intellectual endeavour.

These include (but are not limited to):

(a) The Patents Act for protecting the way things work; 
(b) The Trade Marks Act which protects the branding of goods and services;
(c) The Designs Act which protects the shape, appearance and general look of an object;
(d) The Copyright Act which protects a broad range of matters, but mainly literary and artistic works from copying.
(e) In addition to the above clearly defined pieces of legislature; Trade Secrets, confidential information and the Trade Practices Act provide additional ways of protecting intellectual property.

So, from this bundle of legal provisions some type of protection or definition of just about any creative motion can be found. However, in order to secure protection some positive action is
usually required by the person involved and often positive steps must be taken in a timely manner or the potential to secure protection can be lost forever.

Why seek protection?

Protection of a craftsperson’s IP is mainly sought for commercial reasons.
Protected IP serves three main purposes:

1) Protected IP is a deterrent to copying. If a target piece of work is clearly marked as protected most people will think twice before making a blatant copy and selling in the market place.

2) Protected IP provides a clear definition of exactly what the intellectual property comprises and serves as an excellent licensing tool if the owner cares to sell the IP. 

3) Protected IP that is infringed can be actioned by litigation commencing with a letter of demand drawing the offending party’s attention to your rights and the existence of the protected IP right through to full blown litigation in the courts if they ignore your demands to cease infringing.

Whilst understanding all aspects of Intellectual Property is important to ensure full cover and protection of any intellectual endeavour, with patents providing the lion’s share of the “heavy” side of IP, designs are likely to be most relevant to craftspeople in general. Hence, I will start with a
short introduction to Design registration and move onto discussing the other types of IP in follow up articles. 

Registered Designs

Design registration is concerned with the way things look, rather than the way they work.
A registered Design provides a monopoly for a limited period of 10 years.
The design must be new and original.

What can be registered?

Most articles with a three dimensional shape can be registered for the shape and configuration of the article.
A new pattern or ornamentation applied to a two dimensional article can also be registered.

How is Registration obtained?

Representations of the article, which fully and clearly show all views of the article, are filed at the Designs Office (IP Australia) either by post or on-line along with payment of a filing fee of $250 and a request for “registration”.

The Designs Office will check that you have completed all the formalities (spelt your own name correctly etc.) then “register” your design. However, this registration is not enforceable and is
not checked for newness or novelty.

In order to render your registration enforceable and of meaningful legal value you must take another step of filing a request for examination of your registration and pay another fee $420 this time.

The Designs examiner will then conduct a search to look for similar designs and if your design appears novel the examiner will issue a “Certification of Examination”. If the examiner finds a similar article or design they may issue an adverse report and refuse to certify the registration. 

Only at this stage you will have enforceable rights.

When should a design be filed?

BEFORE any public disclosures of the article or any sales. Even an offer for sale can invalidate a design.
As soon as the final shape is decided, but before any public trials or disclosure.

Do I need professional representation?

A design application can be prepared and filed by the applicant without using a professional.
However, the careful preparation of drawings and the wording used on some of the forms is important in securing the best protection. A registered attorney can arrange drawings that properly represent your design and will satisfy all the formality requirements of the office. But, the most important contribution a good attorney will provide is sound guidance on the most appropriate type of protection suited to your project.

Often a combination of design, patent and trademark protection is required and an experienced attorney is best placed to provide that type of guidance. 

Mark Wakeham 2015

Mark is a recently retired intellectual property attorney and now runs a small woodworking business following a lifetime interest in the craft.

He can be contacted via his profile on the VWA website via his web page

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