Thursday, 27th October, 2011

Rights stuff

At the heart of every successful business is something valuable, yet intangible - such as knowledge, ideas, reputation, brands, new technology, concepts, designs or styles.  

While these are not physical assets, they are a recognised form of property -intellectual property (IP).

What is IP?

IP is an umbrella term used to refer to a bundle of distinct rights that an owner can get either through registration or through use.  The most recognised rights are patents, designs, copyright and trade marks, but there are many others as well.  Each right can potentially be obtained for an aspect of a whole idea.  Very generally - patents protect how something works, designs protects how it looks, and trade marks protect what it is called.

The importance of IP to business

IP is, or should be, important to business. Ownership and the boundaries of IP rights need to be understood by any business looking to take advantage of a new idea or innovation.  On the one hand you could have created something worthy of protection in its own right; on the other hand you may need to step around existing rights. Either way thinking about IP and getting expert advice could present for you business opportunities that you could leverage.

Why is the Government concerned with IP?

The Government wants to ensure that New Zealand has an environment where innovation is encouraged and fostered.  It recognises that having a framework to protect great ideas will provide a platform for the development, protection, and commercialisation of those ideas not just by New Zealanders but also by overseas innovators. 

Also the Government is keen to foster Free Trade Agreements with some of the big economies. IP is often at the heart of a Free Trade Agreement - recognition and the ability to enforce rights held is key. The Government needs to show that New Zealand will play its part in the international incentivisation of ideas generation and protection.

How are IP laws made?

Parliament is New Zealand's supreme law-making body. Its members study proposals for new laws, debate their likely effects, and decide whether the proposals should become law.
Proposed laws are introduced into Parliament as bills. When passed and given the Royal assent by the Governor-General, they become Acts. Acts can cover almost any subject, such as which crimes are punishable by prison, how much money the government is allowed to spend, what subject matter is patentable and where people are allowed to fish. Acts may be public (of general importance) or private (limited to particular bodies, groups or individuals).

The process allows the public to be involved and you should get involved as Parliament doesn't always get it right.  You can make written and sometimes oral submission before the relevant Select Committee. You can also lobby your local MP so they are abreast of what the issues are and can help ensure that what is enacted is fair, balanced and workable.

How else does the Government get involved with IP?

When you have a great new idea, your first stop is to a patent attorney to discuss and explore what rights you might be able to get. Your patent attorney will consider what laws and regulations the Government has enacted that apply to your innovation and will help you work with the regulatory frameworks that are in place. Not all ideas are protectable.

Your second stop will most likely be directly with the Government. It is the Ministry of Economic Development that runs the agency (IPONZ) in New Zealand that manages the regulatory framework and records most of the registered IP rights you can get in New Zealand. 

An alternative second stop, or a third stop, could be to possibly one of the many Government agencies that offer financial support to businesses seeking to invest in research and innovation.  Funding is available to build New Zealand's innovative, economic, environmental and social capacity.  An example is Technology New Zealand.

Other support is provided by many economic development agencies funded by the Government to provide practical business skills and contacts to businesses looking to leverage opportunities.

The Government is concerned with ensuring that those who innovate reap the rewards for their efforts.  For example, to get a patent (say for a pharmaceutical) you publically disclose details of the composition and formulation of your pharmaceutical and in return the Government gives you a 20-year monopoly over the importation, manufacture and sale of the pharmaceutical. You have the monopoly to be able to exploit and achieve a return on investment, which will encourage you to undertake further research and develop more life saving drugs. Once your monopoly ends, anyone can make and sell your pharmaceutical, including generic drug companies.

Recent legislation

IP laws need to change periodically to reflect current technologies and developments.  In the pipeline are the Patents Bill, the Patent Attorneys Bill and the Trade Marks (International Treaties and Enforcement) Amendment Bill.  We have seen the recent enactment of the Major Events Management Act 2007 and The Copyright (Infringing File Sharing) Amendment Act 2011 and we understand there is more legislative change to come. 

Get involved

Make sure you are aware of what is happening in the world of IP and how it might affect you and your business.  Read widely and ask your patent attorney to alert you to any changes that may impact on your business.  Get involved and make your views known by making submissions and contacting your local MP.  Often it is the vocal minority that gets heard!  Being involved can influence change - we saw that happen with The Copyright (Infringing File Sharing) Amendment Act 2011.

An edited version of this article was published in Her magazine, October/November 2011.