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Intellectual Property for Accountants 
A Definitive Guide to IP for the practising accountant 
Presenter: Nick Weston 
William Buck, Melbourne 
25 November, 2014
This launch of the Nicholas Weston White Paper, IP for 
Accountants provides an overview of intellectual property 
(IP) and the various types of rights available 
We outline of each type of IP protection and the levers that 
drive the economic value of IP 
The session will conclude with a brief overview of how 
accountants with a basic familiarity with IP can advantage 
themselves and their clients 
2 
Intellectual Property for Accountants 
Agenda
• Types of intellectual property 
• The levers driving economic value of IP 
• Aligning IP with your role and business strategy 
3 
IP for Accountants - Overview 
Intellectual property
• Types of intellectual property 
• What is intellectual property? 
• Patents 
• Trade Marks 
• Domain Names 
• Designs 
• Plant Breeder’s Rights 
• Copyright 
• Trade Secrets 
• The levers driving economic value of IP 
• Aligning IP with your role and business strategy 
4 
IP for Accountants - Overview 
Intellectual property
IP for Accountants 
What is intellectual property? 
Intellectual property (IP) refers to creations of the mind: 
inventions, literary and artistic works, and symbols, names, 
images, and designs used in commerce 
IP is often represented in the form of patents, registered 
designs, trade marks, copyright, circuit layout rights, plant 
breeder’s rights and trade secrets 
Domain names and some forms of data can also be IP 
5 World Intellectual Property Organization http://www.wipo.int/about-ip/en/
• Types of intellectual property 
• What is intellectual property? 
• Patents 
• Trade Marks 
• Domain Names 
• Designs 
• Plant Breeder’s Rights 
• Copyright 
• Trade Secrets 
• The levers driving economic value of IP 
• Aligning IP with your role and business strategy 
6 
IP for Accountants 
Intellectual Property
Types of Intellectual Property 
A patent is a temporary monopoly (generally 20 years-subject 
to possible extension for pharmaceutical 
substances) in a technological innovation granted to the 
patentee 
Not more than 18 months after the lodgement of a patent 
application, a detailed description of the invention becomes 
available for public inspection 
7 
Patents
Types of Intellectual Property 
Three criteria for a granted patent 
• It must be novel 
• It must be non-obvious 
• It must have commercial utility 
In Australia there are two types of patent applications 
available 
• Standard Patents 
• Innovation Patents 
8 
Patents
Types of Intellectual Property 
A Standard Patent 
• Specification consists of a description and claims defining the 
monopoly conferred by the patent 
• There is a need to clearly set out at the filing date how each step of 
the invention across the scope of the claims can be carried out and 
tested 
• Claims define novel articles, parts of articles, substances, 
compositions, living organisms, methods of therapeutic treatment or 
other uses of the foregoing, and/or manufacturing processes: 
• more than one these claim types may be present in a single 
patent 
9 
Patents
Types of Intellectual Property 
Patents 
A Standard Patent 
• Subjected to examination for novelty, inventive step and 
other matters 
• Maximum term (subject to possible extension for 
pharmaceutical substances) is 20 years from “the 
effective filing date” 
• In addition to a written description, the specification must 
provide sufficient description to enable a person of skill in 
the art to practice the invention across the scope of the 
claims 
10
Types of Intellectual Property 
Patents 
Innovation Patent 
• Consists of an abstract, patent request and specification, 
similar to standard patents 
• Specification has the same description requirements as a 
standard patent but can only contain a maximum of 5 
claims; all can be independent 
• The novelty test for an innovation patent is the same as 
for a standard patent, however, a lower “innovative step” 
test applies 
• Maximum term is 8 years from the effective filling date 
11
Types of Intellectual Property 
Patents 
Innovation Patent 
Not as commonly used in Biotech Industry, because, unlike 
relatively simple mechanical inventions, biotechnology 
inventions 
• are difficult to describe and 
• are inherently unpredictable and 
• can have up to 200 pages of specifications 
12
Types of Intellectual Property 
Patents 
Patent Cooperation Treaty - PCT application 
There is no such thing as an International Patent. A PCT 
application is a virtual application in every country that is a 
member of the Patent Cooperation Treaty. Each PCT 
application then turns into a national application in each 
country 
It reserves a priority date for the invention to give the owner 
extra time to determine where the invention should be 
protected. The owner can do additional marketing and/or 
research to find out where they would have the most 
success in selling the product 
13
Types of Intellectual Property 
Patents 
Patent Cooperation Treaty - PCT application 
• PCT provides for an application in a signatory country to 
be filed as an international application 
• Also provides for a preliminary non-binding examination 
• A PCT application can progress as a national application 
in each designated country 
• Signatories include most of Australia’s major trading 
partners 
14
Types of Intellectual Property 
Typical PCT process 
15 http://ipparalegals.com/media/blogs/experts-quill/what-is-a-pct/
Types of Intellectual Property 
Typical patent process and cost 
$200,000 
$150,000 
$100,000 
$50,000 
16 QUT-2004 
$0 
Provisional 
Application 
PCT 
Application 
National 
Phase 
Entry 
Cumulative cost 
Examination Renewals 
Months 
0 12 30 
Patent granted 
Defence 
>$1m
Types of Intellectual Property 
Patents 
• An Australian patent registration only applies in Australia, 
it does not apply overseas 
• It is common to file in each nation protection is required 
• In order to gain a commercial advantage within the 
Biotech industry, there is a need to market in the U.S. 
• There is a need to use the stringent U.S. standard for 
fully describing the invention 
17
Types of Intellectual Property 
Patents- US Patent System 
In the U.S. there are three types of patent applications 
• Utility Patents 
• Design Patents 
• Plant Patents 
In the U.S. the patent will be granted on an application filed 
by the first inventor of the claimed invention 
18
Types of Intellectual Property 
Utility Patent Protects the way in which an invention is made, how 
it is used or how it functions 
- Expires 20 years from the effective filing date 
Design Patent Protects new ornamental design for an article of 
manufacture 
- Expires 14 years from the date of grant 
Plant Patent Protects distinct and new plant varieties 
- Expires 20 years from the effective filing date 
19 
Patents
Types of Intellectual Property 
Idiosyncrasies of protecting biologics- Patents 
• The biotech/pharmaceutical art is crowded 
• Scientists may be aware of non-patent literature 
• A new generation of scientists is turning to the internet as a 
vehicle to post raw experimental results. Such promiscuity with 
research data undermines the very integrity of the scientific 
endeavour 
• ‘Publish or perish’ vs. ‘publish and perish’ 
• Patent literature may be in advance of scientific publications 
20
Types of Intellectual Property 
Idiosyncrasies of protecting biologics - Patents 
• Examination is a different standard to peer review 
• Without the rewards provided by the patent system, researchers and 
inventors would have little incentive to continue producing better and 
more efficient products for consumers 
• Association of Molecular Pathology v Myriad Genetics (2013) 
• Naturally-occurring DNA is not patent eligible 
• cDNA is patent eligible because it is not naturally-occurring 
• In Australia, business as usual? 
• APO continues to allow patent applicants to claim genetic 
material 
• Genetic material must have been isolated 
21
Types of Intellectual Property 
Idiosyncrasies of protecting biologics - Myriad decision 
• Gene Patent Eligibility Before Myriad (USPTO Utility Examination 
Guidelines) – 2001 
• An inventor’s discovery of a gene can be the basis for a patent on 
the genetic composition isolated from its natural state and 
processed through purifying steps that separate the gene from 
other molecules naturally associated with it 
• Patent Eligibility of DNA Fragments – Post Myriad decision (2013) 
• Fragments of genomic DNA are ineligible 
• Fragments of cDNA also found in genomic sequence are 
ineligible 
• Fragments of cDNA not found in genomic sequence are eligible 
22
Intellectual Property 
Idiosyncrasies of protecting biologics - Data protection 
Data protection as a biologic from date of regulatory approval 
• 5 years Australia 
• 6 years China 
• 10 years EU 
• 12 years USA 
23
Types of Intellectual Property 
Idiosyncrasies of protecting biologics - Hatch-Waxman 
Act extension (U.S.) 
• Provides a patent term extension for patents covering 
human drug products that are subject to FDA approval 
effectively a credit for the time the FDA spent reviewing 
the first drug application 
• extension is for a maximum of five years or 14 years of effective 
patent life, whichever is less 
• must be for a patent that claims either a: 
– drug product, which means the active ingredient and any 
– approved drug using that active ingredient 
– method of using a drug product 
– method of manufacturing a drug product 
24
IP for Accountants - Overview 
Intellectual Property 
• Types of intellectual property 
• What is intellectual property? 
• Patents 
• Trade Marks 
• Domain Names 
• Designs 
• Plant Breeder’s Rights 
• Copyright 
• Trade Secrets 
• The levers driving economic value of IP 
• Aligning IP with your role and business strategy 
25
Types of Intellectual Property 
A trade mark is a sign used, or intended to be used, to 
distinguish goods or services dealt with or provided in the 
course of trade by a person from goods or services so dealt 
with or provided by any other person 
26 
Trade Marks
Types of Intellectual Property 
• A trade mark can be a phrase, word, letter, name, 
signature, numeric device, logo, colour, symbol, picture, 
aspect of packaging or shape, and even a scent or sound 
• It can consist of words or images alone or any 
combination of the above signs 
• A mark must not be ‘deceptively similar’ to a registered 
trade mark: 
• Trade mark infringement 
• Schedule 2 of the CCA 2010 
• A good trade mark is more distinctive than descriptive, 
and is not defamatory, not a geographical name, not a 
common surname, not scandalous, not contrary to law 
27 
Trade Marks
Types of Intellectual Property 
• Scope of Protection – Common law and Registration 
• Common law rights rely on reputation 
• Registration of a trade mark provides the right to 
exclusively use, license, or sell goods and services under 
the mark 
• 45 classes of goods and services with a fee payable per 
class – ask attorney for a fee schedule 
• Broadly worded applications make render the registration 
vulnerable to attack for “non-use” 
• No maximum term for which a trade mark can be 
registered but must be renewed every 10 years 
28 
Trade Marks
IP for Accountants - Overview 
Intellectual Property 
• Types of intellectual property 
• What is intellectual property? 
• Patents 
• Trade Marks 
• Domain Names 
• Designs 
• Plant Breeder’s Rights 
• Copyright 
• Trade Secrets 
• The levers driving economic value of IP 
• Aligning IP with your role and business strategy 
29
Types of Intellectual Property 
Domain Names 
• A domain name is an internet address that typically 
comprises a name followed by a domain. As an 
example, our domain name comprises our law firm’s 
name <nicholasweston> followed by the ‘.com’ generic 
Top Level Domain or gTLD suffix 
• Many Australian businesses prefer to use the country 
code (ccTLD) Top-Level Domain ‘ .au’ so that they are 
more visible to Australia focussed searches 
• First come, first served 
30
Types of Intellectual Property 
Domain Names 
• A domain name may be eligible for registration as a trade 
mark 
• Registration of a domain name typically grants the 
registrant an ‘exclusive right’ to use it rather than outright 
ownership 
• System is administered by ICANN 
31
Types of Intellectual Property 
Domain Names 
• WHOIS searches 
• Domain name registration agreements contain a term to 
abide by ICANN’s Uniform Domain Name Dispute 
Resolution Policy or UDRP and its procedural rules or the 
relevant ccTLD dispute policy 
• In Australia, the relevant policy for a domain name with 
the suffix .au is called the .au Dispute Resolution Policy 
32
Types of Intellectual Property 
Domain Names 
• UDRP/.auDRP 
• Domain name disputes can be resolved by administrative 
cancellation or transfer of the disputed domain name by 
way of a lower cost means than litigation that start at 
$1,500.00 plus attorney fees 
33
IP for Accountants - Overview 
Intellectual Property 
• Types of intellectual property 
• What is intellectual property? 
• Patents 
• Trade Marks 
• Domain Names 
• Designs 
• Plant Breeder’s Rights 
• Copyright 
• Trade Secrets 
• The levers driving economic value of IP 
• Aligning IP with your role and business strategy 
34
Types of Intellectual Property 
Designs 
• A design is a feature of shape, configuration, pattern or 
ornamentation of a product 
• A design registration is used to protect the visual 
appearance of manufactured products 
• The registration of a design provides that party with the 
right to exclusively use, license, or sell the design for up 
to a maximum of 15 years 
35
Types of Intellectual Property 
Designs 
• Aesthetical in 
nature 
• Technical 
features not 
protected, still 
need a patent to 
protect the 
technology 
36
IP for Accountants - Overview 
Intellectual Property 
• Types of intellectual property 
• What is intellectual property? 
• Patents 
• Trade Marks 
• Domain Names 
• Designs 
• Plant Breeder’s Rights 
• Copyright 
• Trade Secrets 
• The levers driving economic value of IP 
• Aligning IP with your role and business strategy 
37
Types of Intellectual Property 
Plant Breeder’s Rights 
• To be eligible for protection, a plant variety must adhere 
to three broad criteria 
• Distinctiveness 
• Uniformity 
• Stability 
• Commercial novelty 
• the variety must not have been sold in Australia for 
more than one year before the application 
38
Types of Intellectual Property 
Plant Breeder’s Rights 
• Plant Breeder’s Rights provide commercial rights for 20- 
25 years to market a new variety or its reproductive 
material 
• Selection from nature or discoveries naturally occurring 
are not eligible 
• The variety must not have been sold in Australia more 
than one year before the application 
• Must not have been sold overseas for more than 6 years 
before the application 
39
Types of Intellectual Property 
Plant Breeder’s Rights - examples 
• Plant-made pharmaceuticals – growing medicines in 
plants 
• Modifying algae to produce biofuels, or grow on salt 
lakes- reduction of environmental footprint and minimises 
pollution (climate change) 
• Increasing farming efficiency through high yield crops 
• Reducing natural toxins in plants 
40
IP for Accountants - Overview 
Intellectual Property 
• Types of intellectual property 
• What is intellectual property? 
• Patents 
• Trade Marks 
• Domain Names 
• Designs 
• Plant Breeder’s Rights 
• Copyright 
• Trade Secrets 
• The levers driving economic value of IP 
• Aligning IP with your role and business strategy 
41
Types of Intellectual Property 
• No system of Copyright registration in Australia 
• Many different types of Copyright protection 
• Literary works 
• Artistic works 
• Dramatic works 
• Musical works 
• Cinematography films 
• Sound recordings and 
• Broadcasts 
• Performance rights 
42 
Copyright
Types of Intellectual Property 
Protects: 
• textual material (“literary works”) such as journal articles, 
novels, screenplays, poems, song lyrics, laboratory 
workbooks and reports 
• computer programs (a sub-category of “literary works”) 
• compilations (another sub-category of “literary works”) 
such as anthologies – the selection and arrangement of 
material may be protected separately from the individual 
items contained in the compilation 
43 
Copyright
Types of Intellectual Property 
Protects: 
• artistic works such as paintings, drawings, cartoons, 
sculpture, craft work, architectural plans, buildings, 
photographs, maps and plans 
• dramatic works such as choreography, screenplays, 
plays and mime pieces 
• musical works: that is, the music itself, separately from 
any lyrics or recording; 
• cinematograph films: the visual images and sounds in a 
film, video or DVD are protected separately from any 
copyright in works recorded on the film or video, such as 
scripts and music 
44 
Copyright
Types of Intellectual Property 
Protects: 
• sound recordings: the particular recording itself is 
protected by copyright, in addition to, for example, the 
music or story that is recorded 
• broadcasts: TV and radio broadcasters have a copyright 
in their broadcasts, which is separate from the copyright 
in the films, music and other material which they 
broadcast 
• performances: a performer’s consent is generally 
required to film or record a performance and to broadcast 
or otherwise communicate a performance 
45 
Copyright
Types of Intellectual Property 
• Expression vs. idea 
• Expression protected – not ideas 
• Your independent creation as you expressed it 
• Copyright protection is free and automatic 
46 
Copyright
IP for Accountants - Overview 
Intellectual Property 
• Types of intellectual property 
• What is intellectual property? 
• Patents 
• Trade Marks 
• Domain Names 
• Designs 
• Plant Breeder’s Rights 
• Copyright 
• Trade Secrets 
• The levers driving economic value of IP 
• Aligning IP with your role and business strategy 
47
Types of Intellectual Property 
Trade Secrets 
• Confidential information or ‘trade secrets’ includes 
information such as a formula, pattern, compilation, 
program, data, device, method, technique, or process, 
that 
• derives independent economic value, actual or 
potential, from not being generally known to, and not 
being readily ascertainable by proper means, by other 
persons who can obtain economic value from its 
disclosure or use, and 
• is the subject of efforts that are reasonable under the 
circumstances to maintain its secrecy 
48
Intellectual Property 
Trade Secrets 
• Common law protection of confidential information 
• Confidential/proprietary information 
• that has commercial value to the owner because the 
information is not generally available to public, and 
• owner takes reasonable measures to keep information 
secret 
• No formal filing needed 
• Trade secrets may include inventions not yet patented or 
portions of a work that are not fully protected by copyright 
49
Types of Intellectual Property 
Trade Secrets – examples: 
• Essentially 2 types of trade secret categories: 
• Inventions or manufacturing processes that do not meet 
the patentability criteria and therefore can only be 
protected as trade secrets. 
• customers lists or manufacturing processes that are 
not sufficiently inventive to be granted a patent 
• Inventions and manufacturing processes that would fulfil 
the patentability criteria and could therefore be protected 
by patents 
• SME will face a choice to patent the invention or to 
protect it under NDAs or CAs 
50
Types of Intellectual Property 
Patents v. Trade Secrets 
Patents Trade Secrets 
Protects against independent discovery 
No protection against independent discovery 
or reverse engineering 
20 years of protection Protection lasts as long as secret 
Scope for publication of development No opportunity for publication 
Enforcement: infringement 
Enforcement: breach of confidence, breach of 
contract, breach of fiduciary duty 
Protection can be broadened beyond 
specific discovery/development 
Protection specific to particular secret 
51
IP for Accountants - Overview 
Intellectual Property 
• Types of intellectual property 
• The levers driving economic value of IP 
• Aligning IP with your role and business strategy 
52
The levers driving economic value of IP 
Licensing and royalty rates 
• There are accepted rules of thumb and forms of analysis to 
arrive at royalty rates 
• An annual royalty can be tied to sales, gross profits or a 
licensee friendly nett revenue basis. One can fix it, cap it 
(annually or over the term), index it, tie it to a ‘most favoured 
nation’ type arrangement, or a combination of these and other 
techniques 
• A ‘stacking’ term might be the go to cap a royalty or divide a 
fixed fee if a licensee is at the early stages of commercialising 
IP and full commercialisation will require other third party 
licenses and the number or amount of those third party 
royalties is unknown 
53
The levers driving economic value of IP 
Licensing and royalty rates 
• Rates tend to reflect profit margins, ‘runway’ or duration of the 
profit, as well as risk and is informed by industry norms, 
exclusivity, non-monetary factors (such as grant backs or off-take 
agreements) and RoI analysis. 
• In turn, royalty rate is invariably a function of the value of the 
IP assets 
54
The levers driving economic value of IP 
Valuing IP rights 
• Registered rights are easy to identify 
• Intangible rights such as know how (which can include the 
talents, skill and knowledge of the workforce), training systems 
and methods, designs, technical processes, customer lists, 
distribution networks, and so on are equally valuable assets 
but the earnings and profits they generate can be devilishly 
tricky for accountants to identify and allocate 
55
The levers driving economic value of IP 
Valuing IP rights 
• Intangibles are not generally depreciating or CGT assets 
• Treated as income from the supply of a service 
• Valuation of intangibles means on disposal money received as 
capital rather than income 
56
The levers driving economic value of IP 
Valuing IP rights 
• Cost method 
• Market value method 
• DCF/NPV models 
57
The levers driving economic value of IP 
Tax implications and benefits 
• CGT – cost base = costs incurred in developing or acquiring 
the IP 
• Tax deductions require a clear link between the expenditure 
related to the IP and producing assessable income 
• The cost of developing IP assets such as trade secrets, know-how 
and confidential information are usually in the form of 
salaries and wages, which are usually tax deductible 
58
IP for Accountants - Overview 
Intellectual Property 
• Types of intellectual property 
• The levers driving economic value of IP 
• Aligning IP with your role and business strategy 
59
IP for Accountants 
Aligning IP and your role with business strategy 
• Most inventions involve small incremental improvements to 
existing technology 
• A successful R&D operation will be directed towards 
commercial outcomes 
• Commercial considerations and IP are the complementary 
driving forces behind any R&D strategy 
60
IP for Accountants 
Aligning IP and your role with business strategy 
61 
Business 
Plan 
Product 
Methods, 
Processes, or 
Techniques 
Flow Chart, 
Source 
Codes 
Name / Graphics 
/ Logos 
Algorithms 
Marketing / 
Product 
Launch Time 
Table 
Designs, 
Drawings, 
etc. 
Trade Secret 
Trade Secret 
Patent 
Copyright 
Patent 
Trade 
Secret 
Trade 
Secret 
Trade Secret 
Copyright 
Trademark 
Copyright 
Copyright 
Copyright 
Trade Secret 
Copyright 
Patent 
Source: Boeing 2011
IP for Accountants 
Aligning IP and your role with business strategy 
• If the principal aim is to maximise profit margins, then the 
strategy must involve the protection of the products, processes 
or services which are identified as being most relevant to 
those margins 
• If the goal is to penetrate new markets, then the policy may 
involve generating new IP, and managing how that product is 
marketed, produced and protected 
• Or the intention may be to realise cash rewards for a 
significant R&D investment, which can be achieved by 
licensing 
62
IP for Accountants 
Aligning IP and your role with business strategy 
R&D Tax Incentive 
• 43.5% refundable tax offset where aggregated annual turnover 
(AAT) $ < 20M 
• 38.5% where AAT > $20M but < $ 20B 
• Overseas R&D spend needs to be less than half local R&D 
spend but can get advance finding 
• Core and supporting activities 
• Apply within 10 months end FY 
• Guidance products 
63
IP for Accountants 
Aligning IP and your role with business strategy 
• Stamp duty (jurisdiction shopping) 
• PPSA (check for security interests) 
• FOI (dig deeper) 
64
IP for Accountants 
Aligning IP and your role with business strategy 
• Oppositions 
• Appeals 
• Injunctions 
• Adverse Examinations, Tribunal, AAT (including adverse IP 
Australia findings, or ITAA and R&D Tax Incentive 
assessments), Federal Circuit Court; Federal Court of 
Australia, High Court 
65
IP for Accountants 
Aligning IP and your role with business strategy 
• Know what IP is and take steps to manage it 
• Triage, prioritise, plan for discord 
• Monetising IP, calculating royalties and drafting licence 
agreements is more science than art 
• Get professional help 
66
IP for Accountants 
Nick Weston 
T: +61 3 8616 0379 
mail@nicholasweston.com 
White Paper IP for Accountants available for download on the 
www.nicholasweston.com website 
67 
THANK YOU

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IP for Accountants Companion launch presentation

  • 1. Intellectual Property for Accountants A Definitive Guide to IP for the practising accountant Presenter: Nick Weston William Buck, Melbourne 25 November, 2014
  • 2. This launch of the Nicholas Weston White Paper, IP for Accountants provides an overview of intellectual property (IP) and the various types of rights available We outline of each type of IP protection and the levers that drive the economic value of IP The session will conclude with a brief overview of how accountants with a basic familiarity with IP can advantage themselves and their clients 2 Intellectual Property for Accountants Agenda
  • 3. • Types of intellectual property • The levers driving economic value of IP • Aligning IP with your role and business strategy 3 IP for Accountants - Overview Intellectual property
  • 4. • Types of intellectual property • What is intellectual property? • Patents • Trade Marks • Domain Names • Designs • Plant Breeder’s Rights • Copyright • Trade Secrets • The levers driving economic value of IP • Aligning IP with your role and business strategy 4 IP for Accountants - Overview Intellectual property
  • 5. IP for Accountants What is intellectual property? Intellectual property (IP) refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce IP is often represented in the form of patents, registered designs, trade marks, copyright, circuit layout rights, plant breeder’s rights and trade secrets Domain names and some forms of data can also be IP 5 World Intellectual Property Organization http://www.wipo.int/about-ip/en/
  • 6. • Types of intellectual property • What is intellectual property? • Patents • Trade Marks • Domain Names • Designs • Plant Breeder’s Rights • Copyright • Trade Secrets • The levers driving economic value of IP • Aligning IP with your role and business strategy 6 IP for Accountants Intellectual Property
  • 7. Types of Intellectual Property A patent is a temporary monopoly (generally 20 years-subject to possible extension for pharmaceutical substances) in a technological innovation granted to the patentee Not more than 18 months after the lodgement of a patent application, a detailed description of the invention becomes available for public inspection 7 Patents
  • 8. Types of Intellectual Property Three criteria for a granted patent • It must be novel • It must be non-obvious • It must have commercial utility In Australia there are two types of patent applications available • Standard Patents • Innovation Patents 8 Patents
  • 9. Types of Intellectual Property A Standard Patent • Specification consists of a description and claims defining the monopoly conferred by the patent • There is a need to clearly set out at the filing date how each step of the invention across the scope of the claims can be carried out and tested • Claims define novel articles, parts of articles, substances, compositions, living organisms, methods of therapeutic treatment or other uses of the foregoing, and/or manufacturing processes: • more than one these claim types may be present in a single patent 9 Patents
  • 10. Types of Intellectual Property Patents A Standard Patent • Subjected to examination for novelty, inventive step and other matters • Maximum term (subject to possible extension for pharmaceutical substances) is 20 years from “the effective filing date” • In addition to a written description, the specification must provide sufficient description to enable a person of skill in the art to practice the invention across the scope of the claims 10
  • 11. Types of Intellectual Property Patents Innovation Patent • Consists of an abstract, patent request and specification, similar to standard patents • Specification has the same description requirements as a standard patent but can only contain a maximum of 5 claims; all can be independent • The novelty test for an innovation patent is the same as for a standard patent, however, a lower “innovative step” test applies • Maximum term is 8 years from the effective filling date 11
  • 12. Types of Intellectual Property Patents Innovation Patent Not as commonly used in Biotech Industry, because, unlike relatively simple mechanical inventions, biotechnology inventions • are difficult to describe and • are inherently unpredictable and • can have up to 200 pages of specifications 12
  • 13. Types of Intellectual Property Patents Patent Cooperation Treaty - PCT application There is no such thing as an International Patent. A PCT application is a virtual application in every country that is a member of the Patent Cooperation Treaty. Each PCT application then turns into a national application in each country It reserves a priority date for the invention to give the owner extra time to determine where the invention should be protected. The owner can do additional marketing and/or research to find out where they would have the most success in selling the product 13
  • 14. Types of Intellectual Property Patents Patent Cooperation Treaty - PCT application • PCT provides for an application in a signatory country to be filed as an international application • Also provides for a preliminary non-binding examination • A PCT application can progress as a national application in each designated country • Signatories include most of Australia’s major trading partners 14
  • 15. Types of Intellectual Property Typical PCT process 15 http://ipparalegals.com/media/blogs/experts-quill/what-is-a-pct/
  • 16. Types of Intellectual Property Typical patent process and cost $200,000 $150,000 $100,000 $50,000 16 QUT-2004 $0 Provisional Application PCT Application National Phase Entry Cumulative cost Examination Renewals Months 0 12 30 Patent granted Defence >$1m
  • 17. Types of Intellectual Property Patents • An Australian patent registration only applies in Australia, it does not apply overseas • It is common to file in each nation protection is required • In order to gain a commercial advantage within the Biotech industry, there is a need to market in the U.S. • There is a need to use the stringent U.S. standard for fully describing the invention 17
  • 18. Types of Intellectual Property Patents- US Patent System In the U.S. there are three types of patent applications • Utility Patents • Design Patents • Plant Patents In the U.S. the patent will be granted on an application filed by the first inventor of the claimed invention 18
  • 19. Types of Intellectual Property Utility Patent Protects the way in which an invention is made, how it is used or how it functions - Expires 20 years from the effective filing date Design Patent Protects new ornamental design for an article of manufacture - Expires 14 years from the date of grant Plant Patent Protects distinct and new plant varieties - Expires 20 years from the effective filing date 19 Patents
  • 20. Types of Intellectual Property Idiosyncrasies of protecting biologics- Patents • The biotech/pharmaceutical art is crowded • Scientists may be aware of non-patent literature • A new generation of scientists is turning to the internet as a vehicle to post raw experimental results. Such promiscuity with research data undermines the very integrity of the scientific endeavour • ‘Publish or perish’ vs. ‘publish and perish’ • Patent literature may be in advance of scientific publications 20
  • 21. Types of Intellectual Property Idiosyncrasies of protecting biologics - Patents • Examination is a different standard to peer review • Without the rewards provided by the patent system, researchers and inventors would have little incentive to continue producing better and more efficient products for consumers • Association of Molecular Pathology v Myriad Genetics (2013) • Naturally-occurring DNA is not patent eligible • cDNA is patent eligible because it is not naturally-occurring • In Australia, business as usual? • APO continues to allow patent applicants to claim genetic material • Genetic material must have been isolated 21
  • 22. Types of Intellectual Property Idiosyncrasies of protecting biologics - Myriad decision • Gene Patent Eligibility Before Myriad (USPTO Utility Examination Guidelines) – 2001 • An inventor’s discovery of a gene can be the basis for a patent on the genetic composition isolated from its natural state and processed through purifying steps that separate the gene from other molecules naturally associated with it • Patent Eligibility of DNA Fragments – Post Myriad decision (2013) • Fragments of genomic DNA are ineligible • Fragments of cDNA also found in genomic sequence are ineligible • Fragments of cDNA not found in genomic sequence are eligible 22
  • 23. Intellectual Property Idiosyncrasies of protecting biologics - Data protection Data protection as a biologic from date of regulatory approval • 5 years Australia • 6 years China • 10 years EU • 12 years USA 23
  • 24. Types of Intellectual Property Idiosyncrasies of protecting biologics - Hatch-Waxman Act extension (U.S.) • Provides a patent term extension for patents covering human drug products that are subject to FDA approval effectively a credit for the time the FDA spent reviewing the first drug application • extension is for a maximum of five years or 14 years of effective patent life, whichever is less • must be for a patent that claims either a: – drug product, which means the active ingredient and any – approved drug using that active ingredient – method of using a drug product – method of manufacturing a drug product 24
  • 25. IP for Accountants - Overview Intellectual Property • Types of intellectual property • What is intellectual property? • Patents • Trade Marks • Domain Names • Designs • Plant Breeder’s Rights • Copyright • Trade Secrets • The levers driving economic value of IP • Aligning IP with your role and business strategy 25
  • 26. Types of Intellectual Property A trade mark is a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person 26 Trade Marks
  • 27. Types of Intellectual Property • A trade mark can be a phrase, word, letter, name, signature, numeric device, logo, colour, symbol, picture, aspect of packaging or shape, and even a scent or sound • It can consist of words or images alone or any combination of the above signs • A mark must not be ‘deceptively similar’ to a registered trade mark: • Trade mark infringement • Schedule 2 of the CCA 2010 • A good trade mark is more distinctive than descriptive, and is not defamatory, not a geographical name, not a common surname, not scandalous, not contrary to law 27 Trade Marks
  • 28. Types of Intellectual Property • Scope of Protection – Common law and Registration • Common law rights rely on reputation • Registration of a trade mark provides the right to exclusively use, license, or sell goods and services under the mark • 45 classes of goods and services with a fee payable per class – ask attorney for a fee schedule • Broadly worded applications make render the registration vulnerable to attack for “non-use” • No maximum term for which a trade mark can be registered but must be renewed every 10 years 28 Trade Marks
  • 29. IP for Accountants - Overview Intellectual Property • Types of intellectual property • What is intellectual property? • Patents • Trade Marks • Domain Names • Designs • Plant Breeder’s Rights • Copyright • Trade Secrets • The levers driving economic value of IP • Aligning IP with your role and business strategy 29
  • 30. Types of Intellectual Property Domain Names • A domain name is an internet address that typically comprises a name followed by a domain. As an example, our domain name comprises our law firm’s name <nicholasweston> followed by the ‘.com’ generic Top Level Domain or gTLD suffix • Many Australian businesses prefer to use the country code (ccTLD) Top-Level Domain ‘ .au’ so that they are more visible to Australia focussed searches • First come, first served 30
  • 31. Types of Intellectual Property Domain Names • A domain name may be eligible for registration as a trade mark • Registration of a domain name typically grants the registrant an ‘exclusive right’ to use it rather than outright ownership • System is administered by ICANN 31
  • 32. Types of Intellectual Property Domain Names • WHOIS searches • Domain name registration agreements contain a term to abide by ICANN’s Uniform Domain Name Dispute Resolution Policy or UDRP and its procedural rules or the relevant ccTLD dispute policy • In Australia, the relevant policy for a domain name with the suffix .au is called the .au Dispute Resolution Policy 32
  • 33. Types of Intellectual Property Domain Names • UDRP/.auDRP • Domain name disputes can be resolved by administrative cancellation or transfer of the disputed domain name by way of a lower cost means than litigation that start at $1,500.00 plus attorney fees 33
  • 34. IP for Accountants - Overview Intellectual Property • Types of intellectual property • What is intellectual property? • Patents • Trade Marks • Domain Names • Designs • Plant Breeder’s Rights • Copyright • Trade Secrets • The levers driving economic value of IP • Aligning IP with your role and business strategy 34
  • 35. Types of Intellectual Property Designs • A design is a feature of shape, configuration, pattern or ornamentation of a product • A design registration is used to protect the visual appearance of manufactured products • The registration of a design provides that party with the right to exclusively use, license, or sell the design for up to a maximum of 15 years 35
  • 36. Types of Intellectual Property Designs • Aesthetical in nature • Technical features not protected, still need a patent to protect the technology 36
  • 37. IP for Accountants - Overview Intellectual Property • Types of intellectual property • What is intellectual property? • Patents • Trade Marks • Domain Names • Designs • Plant Breeder’s Rights • Copyright • Trade Secrets • The levers driving economic value of IP • Aligning IP with your role and business strategy 37
  • 38. Types of Intellectual Property Plant Breeder’s Rights • To be eligible for protection, a plant variety must adhere to three broad criteria • Distinctiveness • Uniformity • Stability • Commercial novelty • the variety must not have been sold in Australia for more than one year before the application 38
  • 39. Types of Intellectual Property Plant Breeder’s Rights • Plant Breeder’s Rights provide commercial rights for 20- 25 years to market a new variety or its reproductive material • Selection from nature or discoveries naturally occurring are not eligible • The variety must not have been sold in Australia more than one year before the application • Must not have been sold overseas for more than 6 years before the application 39
  • 40. Types of Intellectual Property Plant Breeder’s Rights - examples • Plant-made pharmaceuticals – growing medicines in plants • Modifying algae to produce biofuels, or grow on salt lakes- reduction of environmental footprint and minimises pollution (climate change) • Increasing farming efficiency through high yield crops • Reducing natural toxins in plants 40
  • 41. IP for Accountants - Overview Intellectual Property • Types of intellectual property • What is intellectual property? • Patents • Trade Marks • Domain Names • Designs • Plant Breeder’s Rights • Copyright • Trade Secrets • The levers driving economic value of IP • Aligning IP with your role and business strategy 41
  • 42. Types of Intellectual Property • No system of Copyright registration in Australia • Many different types of Copyright protection • Literary works • Artistic works • Dramatic works • Musical works • Cinematography films • Sound recordings and • Broadcasts • Performance rights 42 Copyright
  • 43. Types of Intellectual Property Protects: • textual material (“literary works”) such as journal articles, novels, screenplays, poems, song lyrics, laboratory workbooks and reports • computer programs (a sub-category of “literary works”) • compilations (another sub-category of “literary works”) such as anthologies – the selection and arrangement of material may be protected separately from the individual items contained in the compilation 43 Copyright
  • 44. Types of Intellectual Property Protects: • artistic works such as paintings, drawings, cartoons, sculpture, craft work, architectural plans, buildings, photographs, maps and plans • dramatic works such as choreography, screenplays, plays and mime pieces • musical works: that is, the music itself, separately from any lyrics or recording; • cinematograph films: the visual images and sounds in a film, video or DVD are protected separately from any copyright in works recorded on the film or video, such as scripts and music 44 Copyright
  • 45. Types of Intellectual Property Protects: • sound recordings: the particular recording itself is protected by copyright, in addition to, for example, the music or story that is recorded • broadcasts: TV and radio broadcasters have a copyright in their broadcasts, which is separate from the copyright in the films, music and other material which they broadcast • performances: a performer’s consent is generally required to film or record a performance and to broadcast or otherwise communicate a performance 45 Copyright
  • 46. Types of Intellectual Property • Expression vs. idea • Expression protected – not ideas • Your independent creation as you expressed it • Copyright protection is free and automatic 46 Copyright
  • 47. IP for Accountants - Overview Intellectual Property • Types of intellectual property • What is intellectual property? • Patents • Trade Marks • Domain Names • Designs • Plant Breeder’s Rights • Copyright • Trade Secrets • The levers driving economic value of IP • Aligning IP with your role and business strategy 47
  • 48. Types of Intellectual Property Trade Secrets • Confidential information or ‘trade secrets’ includes information such as a formula, pattern, compilation, program, data, device, method, technique, or process, that • derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means, by other persons who can obtain economic value from its disclosure or use, and • is the subject of efforts that are reasonable under the circumstances to maintain its secrecy 48
  • 49. Intellectual Property Trade Secrets • Common law protection of confidential information • Confidential/proprietary information • that has commercial value to the owner because the information is not generally available to public, and • owner takes reasonable measures to keep information secret • No formal filing needed • Trade secrets may include inventions not yet patented or portions of a work that are not fully protected by copyright 49
  • 50. Types of Intellectual Property Trade Secrets – examples: • Essentially 2 types of trade secret categories: • Inventions or manufacturing processes that do not meet the patentability criteria and therefore can only be protected as trade secrets. • customers lists or manufacturing processes that are not sufficiently inventive to be granted a patent • Inventions and manufacturing processes that would fulfil the patentability criteria and could therefore be protected by patents • SME will face a choice to patent the invention or to protect it under NDAs or CAs 50
  • 51. Types of Intellectual Property Patents v. Trade Secrets Patents Trade Secrets Protects against independent discovery No protection against independent discovery or reverse engineering 20 years of protection Protection lasts as long as secret Scope for publication of development No opportunity for publication Enforcement: infringement Enforcement: breach of confidence, breach of contract, breach of fiduciary duty Protection can be broadened beyond specific discovery/development Protection specific to particular secret 51
  • 52. IP for Accountants - Overview Intellectual Property • Types of intellectual property • The levers driving economic value of IP • Aligning IP with your role and business strategy 52
  • 53. The levers driving economic value of IP Licensing and royalty rates • There are accepted rules of thumb and forms of analysis to arrive at royalty rates • An annual royalty can be tied to sales, gross profits or a licensee friendly nett revenue basis. One can fix it, cap it (annually or over the term), index it, tie it to a ‘most favoured nation’ type arrangement, or a combination of these and other techniques • A ‘stacking’ term might be the go to cap a royalty or divide a fixed fee if a licensee is at the early stages of commercialising IP and full commercialisation will require other third party licenses and the number or amount of those third party royalties is unknown 53
  • 54. The levers driving economic value of IP Licensing and royalty rates • Rates tend to reflect profit margins, ‘runway’ or duration of the profit, as well as risk and is informed by industry norms, exclusivity, non-monetary factors (such as grant backs or off-take agreements) and RoI analysis. • In turn, royalty rate is invariably a function of the value of the IP assets 54
  • 55. The levers driving economic value of IP Valuing IP rights • Registered rights are easy to identify • Intangible rights such as know how (which can include the talents, skill and knowledge of the workforce), training systems and methods, designs, technical processes, customer lists, distribution networks, and so on are equally valuable assets but the earnings and profits they generate can be devilishly tricky for accountants to identify and allocate 55
  • 56. The levers driving economic value of IP Valuing IP rights • Intangibles are not generally depreciating or CGT assets • Treated as income from the supply of a service • Valuation of intangibles means on disposal money received as capital rather than income 56
  • 57. The levers driving economic value of IP Valuing IP rights • Cost method • Market value method • DCF/NPV models 57
  • 58. The levers driving economic value of IP Tax implications and benefits • CGT – cost base = costs incurred in developing or acquiring the IP • Tax deductions require a clear link between the expenditure related to the IP and producing assessable income • The cost of developing IP assets such as trade secrets, know-how and confidential information are usually in the form of salaries and wages, which are usually tax deductible 58
  • 59. IP for Accountants - Overview Intellectual Property • Types of intellectual property • The levers driving economic value of IP • Aligning IP with your role and business strategy 59
  • 60. IP for Accountants Aligning IP and your role with business strategy • Most inventions involve small incremental improvements to existing technology • A successful R&D operation will be directed towards commercial outcomes • Commercial considerations and IP are the complementary driving forces behind any R&D strategy 60
  • 61. IP for Accountants Aligning IP and your role with business strategy 61 Business Plan Product Methods, Processes, or Techniques Flow Chart, Source Codes Name / Graphics / Logos Algorithms Marketing / Product Launch Time Table Designs, Drawings, etc. Trade Secret Trade Secret Patent Copyright Patent Trade Secret Trade Secret Trade Secret Copyright Trademark Copyright Copyright Copyright Trade Secret Copyright Patent Source: Boeing 2011
  • 62. IP for Accountants Aligning IP and your role with business strategy • If the principal aim is to maximise profit margins, then the strategy must involve the protection of the products, processes or services which are identified as being most relevant to those margins • If the goal is to penetrate new markets, then the policy may involve generating new IP, and managing how that product is marketed, produced and protected • Or the intention may be to realise cash rewards for a significant R&D investment, which can be achieved by licensing 62
  • 63. IP for Accountants Aligning IP and your role with business strategy R&D Tax Incentive • 43.5% refundable tax offset where aggregated annual turnover (AAT) $ < 20M • 38.5% where AAT > $20M but < $ 20B • Overseas R&D spend needs to be less than half local R&D spend but can get advance finding • Core and supporting activities • Apply within 10 months end FY • Guidance products 63
  • 64. IP for Accountants Aligning IP and your role with business strategy • Stamp duty (jurisdiction shopping) • PPSA (check for security interests) • FOI (dig deeper) 64
  • 65. IP for Accountants Aligning IP and your role with business strategy • Oppositions • Appeals • Injunctions • Adverse Examinations, Tribunal, AAT (including adverse IP Australia findings, or ITAA and R&D Tax Incentive assessments), Federal Circuit Court; Federal Court of Australia, High Court 65
  • 66. IP for Accountants Aligning IP and your role with business strategy • Know what IP is and take steps to manage it • Triage, prioritise, plan for discord • Monetising IP, calculating royalties and drafting licence agreements is more science than art • Get professional help 66
  • 67. IP for Accountants Nick Weston T: +61 3 8616 0379 mail@nicholasweston.com White Paper IP for Accountants available for download on the www.nicholasweston.com website 67 THANK YOU