Dr Jane Shelton on Rights

Are you securing and capturing all your rights?
Dr Jane Shelton, Managing Director, Marshall Place Associates

That “I am the greatest” hands-on physiopugilist, Muhammad Ali, summed it up as “It’s not bragging if you can back it up”. The field of sports and personal training physiotherapy, however, may not have learned to look after itself as well as the world champion lip.

Intellectual property and intellectual capital can add value to your business, but are you securing and capturing all your rights?

In our modern day society that constantly focuses on information and knowledge management, what could be more critical for your business than ensuring adequate protection and management of your intellectual property and intellectual capital?

Your business is made up of capital, debt and assets. Assets can be monetary, tangible (desk, chairs, computers) and intangible. A lot of value can be found in intangible assets. Intangible assets can include your goodwill, reputation, brand and intellectual property.

Physiotherapists are well aware that their scientific research needs to be protected by copyright, patent, and confidentiality agreements that guard their intellectual property (IP). What is less well appreciated, is that the skills, techniques and specialist routines of the profession can also be valued and protected as intellectual capital (IC). (see McKeough, J. (1996) Australian Journal of Physiotherapy 42:235-242)

Intellectual Property (IP) represents the property of your mind or intellect. (Smart Start, IP Australia). In business terms, this also means your proprietary knowledge. (go to the IP Tool box at www.ipaustralia.gov.au for a practical introduction) Types of intellectual property are patents, trademarks, designs, copyright, circuit layout rights, plant breeder’s rights and trade secrets. Intellectual property is concerned with protecting applications of ideas and information that are of commercial value (Fitzgerald, 1999).

Intellectual Capital is any product of human intellect that is unique and un-obvious with some value in the marketplace. Intellectual property laws cover ideas, inventions, literary creations, unique names, business models, industrial processes, computer program code, and anything that is a trade secret owned by you or your company.

       Intellectual Property includes the rights relating to:
-   Literary, artistic and scientific works;
-   Performances of performing artists, phonograms and broadcasts;
-   Inventions in all field of human endeavour;
-   Scientific discoveries;
-   Industrial designs;
-   Trademarks, service marks, and commercial names and designations;
-   Protection against unfair competition and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.”

(Convention establishing the World Intellectual Property Organisation, 14 July 1967).

A combination of formal control over IP and IC is the way that you can convert the unique patterns of professional practice that you hand on to your students, colleagues and the community that make your business that “extra bit special” and justify a premium for your services. Some of these elements can become part of the “goodwill” associated with the purchase or sale of your practice, or the price that you negotiate in contracts for the supply of your professional services including trade secrets, patent applications and business contacts.

Let’s briefly review some of the key terms that make up IP and IC requirements.

Trade secrets include know-how and other confidential or proprietary information. It can provide effective protection for some technologies, proprietary knowledge (know-how), confidential information and other forms of IC.

Copyright protects the original expression of ideas, not the ideas themselves. It is free and automatically safeguards your original works of art, literature, music, films, broadcasts and computer programs from copying and certain other uses. Copyright protection is provided under the Copyright Act 1968 and gives exclusive rights to license others in regard to copying your work, performing it in public, broadcasting it, publishing it and making an adaptation of that work. Rights vary according to the nature of the work.

Copyright is usually regarded as the original material in literary, artistic, dramatic or musical works, films, broadcasts, multimedia and computer programs, but it also includes notes on your way of doing things, materials provided to your patients and students that describes your special treatment routines and your research and development materials.

Patent:
A patent is a right granted for any device, substance, method or process, which is a “manner or manufacture”, new, inventive and useful. A patent is legally enforceable and gives the owner the exclusive right to commercially exploit the invention for the life of the patent. You cannot patent artistic creations, mathematical models, plans, schemes or other purely mental processes.

If you demonstrate, sell or discuss your invention in public before you file a patent application, you cannot get a patent. Prior to patent use Non-Disclosure Agreements (NDA’s) to ensure that the value of the potential patent is not lost. A patent attorney can assist in the complicated process of searching worldwide patents (to ensure your design can be registered), filing for a provisional patent and then a full patent (20 years).

Trademarks are for words, symbols, pictures, sounds, smells or a combination of these, to differentiate the products of one supplier from those of another (IP Australia). Trademarks include “a device, brand, heading, label, ticket, name, signature word, letter or numeral or any combination thereof.” (Trademarks Act (1955) Section 6 (1).

Initial registration of a trade mark lasts for 10 years. After that time you can continue to renew your registration for successive periods of 10 years. A registered trade mark gives you the exclusive legal right to use, license or sell it within Australia for the goods and services for which it is registered.

Business names are the names under which a business operates and registration identifies the owners of the business. Registration is compulsory, in every state and territory from which a business operates, and must be completed before the business starts trading. Unlike trade marks, business names do not necessarily provide proprietary rights for the use of the trading name and can often be captured by others in another state or country unless they have been separately registered.

Domain names are a website address that allows people to find information about your business on the net. Capturing your domain name and URL address is critical to ensure that unscrupulous individuals do not try to pass off, pretending to be your business and live off your goodwill and brand name. In Australia, you cannot register your trade mark as a domain name unless the trade mark is the same as your legal entity name.

Assignment of IP or IC contract that can be signed by partners, patients and professional associates to cover any commercial use or transfer of special skills or techniques that you agree to make available for their subsequent use. This assignment can be assigned completely to cover the business as a whole and/or specific competencies covered in a manual or training program. When this occurs the party to whom the contract is being assigned accepts all the obligations under the contract as well as all the legal rights associated with the application of your techniques

It is also possible to assign individual rights under a contract, for example, the right to receive the revenue from the sale of the manuals, the accounts from the practice and benefits from the installation of special equipment that you may assign indefinitely or for a specified amount or period of time.

On a day to day basis, this may not appear to be of any significance, but if you become aware of a “better way” of helping your clients and the community, it may pay to speak to an intellectual property lawyer or the professional association.

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