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6th 2004f March 2004
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AGM and protecting intellectual property by Kevin Mc Namara

Date:February 13, 2004
Time:7:00 pm.
Place:WEA, 223 Angas Street, ADELAIDE
Presenter:Kevin Mc Namara

Kevin McNamara has prepared well for his career with Collison's, an Adelaide company of attorneys established in 1877 to handle patents and trade marks.

Kevin graduated in Electrical Engineering at the Adelaide University, went on to establish himself in many aspects of the telecommunications' industry, particularly in software development and management, and then progressed on to his fascinating work dealing with patent and trade mark applications at Collisons.

Intellectual Property (IP)

After the shortest Annual General Meeting of the SA Microprocessor Group on record (to maximize our guest speaker's time), Kevin, with the aid of some excellent overhead projection slides and handouts, commenced his presentation by defining exactly what Intellectual Property is as far as the law is concerned. It is a product of the mind, has commercial value that can be traded, and has legal protection through patents, trade marks, etc. within a country (no such thing as "world patents").

Patents

Protection for IP sometimes needs to be registered such as with patents while at other times protection is provided by unregistered means such as copyright. If you choose patenting then you get 20 years protection, but only in return for full disclosure of your idea. The prerequisites for a successful application are that your idea is not already registered by someone else and you have not so far published or commercially exploited it. The idea need not actually work such as yet another perpetual motion machine -- it is only necessary for it to be described. You can expect to pay about $8000 in Australia and expect to wait about 4 years for your application to be granted. You have to do your own policing (ie. you have to be on alert that others are not using your patent illegally) and you must make any challenges in the civil courts.

As Kevin said the original intent of patents was to protect someone living "in some garret" with a good idea from being exploited by the big end of town. But as you can see from the difficulty and expense of patenting these days it is more likely to protect the big end of town from someone trying to eke out an existence in some garret.

Trade Marks

Trade marks cover the many different ways that you can be distinguished commercially in the market place. They can be as diverse as a logo, a word, a phrase, a shape, a sound, a smell, and even packaging or combinations of these. It costs you about $600 to register, takes about 6 months, and needs renewal every 10 years.

Kevin advises anyone not to get too fixated, ie. "fall in love", with a trade mark before a search. You may find you can't use it because it is identical or too close to one already registered.

Copyright

Copyright is free and takes effect from the first time it is written down or recorded. This is true whether or not a © indicator is used or not. The © just makes it clear that an infringer canít claim not to know the copyright would be asserted . This is the most likely form of protection for your software. Copyright lasts 50 years from the death of the author, except that the USA has extended this to 70 years to protect Mickey Mouse -- yes, Mickey Mouse! Australia will soon follow due to the Free Trade Agreement. Kevin pointed out that copyright protects from copying and does not protect the idea itself or independent creation.

Trade Secrets

Trade secrets and confidentiality agreements are free and good ways to protect ideas as long as they can really be kept secret. Most software and a lot of modern electronics' hardware such as microcontrollers with "fuses", PLDs and ASICs have this protection simply because reverse engineering is very difficult.

History

Kevin told us that patenting dates back to 15th century Venice for technology transfer and copyright dates from the Statute of Queen Anne in the 17th century to protect books from being copied by the, then, newly developed printing technology -- and maybe in anticipation of MP3, Kazaa, DVD writers and peer-to-peer on the Internet?

Conclusions

Kevin included some of the more interesting patents he has come across in his work. There is the "One Click" patent used by Amazon.com, the "Reverse Auction" patent used by Priceline. Then some only-in-America patents such as the "Bird Trap and Cat Feeder" and the "Brassiere having integrated . . . ".

Kevin gave me a lot better insite into the SCO versus IBM (and almost everybody else) IP infringement claim against Linux than I have seen elsewhere.

During and after Kevin's presentation there were many questions from the audience covering electronics, software, and even plant breeding that took us right up to closing time. There was some comment about the human genome or any parts of it not qualifying as patentable according to the rules and yet has been. There was also my mention of that insignificant, backward, little European country just getting by on barely subsistent dairy farming in the mid 19th century who decided to ignore patenting to foster some small, alternative kitchen industies. That country was, in fact, Switzerland and those kitchen industries are now better known as Maggi, Nestles, Hoffman-LaRoche, Pfizer to name only a few that are now fiercely protected by patents.

If you think you have anything needing any of the forms of protection covered by Kevin in his talk I am sure he would be willing to talk to you and advise you. For example, you might like to patent your own genome before someone else does and sues you for using it. He can be contacted at kmcnamara AT collison.com.au (except perhaps about patenting your genome).

I wish to take this opportunity to thank Kevin on behalf of the group and myself for braving the record high temperatures that kept so many away on the night and for lifting the veil of mystery that tends to surround IP, patenting, copyright, etc. that we should be aware of but usually aren't.

Rick Matthews