Intellectual property is a valuable asset of almost any business. For some businesses it will be the core of the business and by far the most substantial asset of all.

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Intellectual property includes:

• trade marks

• copyright

• registered designs

• geographical indications

• plant breeder's rights

• patents

• circuit layout rights

• confidential information / trade secrets

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IP Australia is the Australian government agency responsible for administering many types of intellectual property in Australia.

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Are you making the most of your intellectual property?

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The three primary things to think about are: own, exploit, protect.

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1.  Own

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Some types of intellectual property arise, and are protected, automatically when a relevant item is created. For example, copyright exists as soon as eligible material is created.

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Some types of intellectual property need to be registered, including trade marks*, registered designs, patents and plant breeder's rights. If registration is required, it can be critical to apply for registration before you start using the intellectual property and while your intellectual property is still confidential.

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*If you have been using a name or logo or other sign (mark) to identify your business but you have not registered it as a trade mark, in some cases you may still be able to stop other people using a similar mark for their business. If that is a potential issue for you, we recommend seeking legal advice as soon as possible.

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Generally speaking, the person who creates the intellectual property will be the first owner of it - or the person entitled to apply for registration of it if registration is required - except that intellectual property created by an employee in the course of employment generally belongs to the employer, and who owns intellectual property created under a contract often depends on what the contract says. For example, if you engage a contractor to do work for you, usually the contractor will own any intellectual property the contractor creates even though you are paying for the work to be done, unless you have a contract with the contractor which says otherwise.

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There are many exceptions to the general rules though, so it is always important to get advice on your specific situation to make sure you know where you stand, and so you can make sure you deal with intellectual property issues appropriately in contracts you enter into, including employment agreements.

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The other way to own intellectual property is for the current owner to transfer (assign) ownership to you. This is similar to transferring ownership other assets such as a car or house. To be effective, an intellectual property transfer usually needs to be recorded in writing. Written records should allow a "chain of title" to be established, going right back to the first owner.

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2.  Exploit

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Sometimes the best way to exploit intellectual property is simply to use it to make goods or deliver services yourself. A great example of this is the formula for Coca-Cola, which has been kept a trade secret and used to very successfully to make and sell the product we all know all over the world.

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In other cases, the best way to exploit intellectual property may be to license other people to use it. For example, plant breeder's rights and patents are often licensed to farmers and manufacturers, in exchange for a royalty or other fee, so they can grow plants and produce goods.

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It is worth thinking carefully about your strategy for exploiting your intellectual property. For example, in some situations, laws allow other people to exploit your intellectual property without needing your permission. If that is significant in your situation, it might affect whether you decide to keep your intellectual property confidential rather than put it in the public domain.

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Remember that many types of intellectual property last for only a limited time, so make sure you exploit your intellectual property to the fullest while you can.

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3.  Protect

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If other people are breaching your intellectual property, obviously they are benefiting at your expense. Clear examples are people who pirate software, movies or music, and people who grow a registered plant variety for commercial purposes without a licence.

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If you want to get the most out of your valuable intellectual property, regular monitoring and prompt action if infringement is detected is the way to go.