A quick-reference guide to protecting and commercialising your IP under Australian law
Why IP matters from day one
For a tech startup, intellectual property is often the most valuable asset on the balance sheet — the code, brand, data and know-how that make the product defensible and investable. Decisions made in the first few months (who signs what, what gets disclosed, and to whom) can permanently affect what IP you can protect and who owns it. Getting the basics right early avoids expensive fixes during a funding round or exit.
IP Overview
| Right | What it protects | Duration | Registration needed? |
|---|---|---|---|
| Patents | New, inventive technical solutions (devices, processes, some software-related inventions) | Up to 20 yrs (25 yrs for some pharma) | Yes — apply to IP Australia |
| Trade marks | Brand names, logos, taglines that distinguish your goods/services | 10 yrs, renewable indefinitely | Yes — recommended; unregistered rights exist but are weaker |
| Copyright | Source code, UI, content, documentation, marketing material | Life of author + 70 yrs | No — arises automatically on creation |
| Registered designs | The visual appearance/shape of a product | Up to 10 yrs (5 + 5) | Yes — must be new and distinctive, and not publicly disclosed first |
| Confidential information | Trade secrets, algorithms, know-how, customer data, pricing | Indefinite, while it stays secret | No — protected by equitable duty of confidence and contract |
Patents: protecting your valuable technology
- Novelty is absolute and worldwide: an invention must be new and involve an inventive step compared to everything publicly known anywhere, as at the filing date.
- File before you disclose: a pitch deck, demo, beta release, or a careless NDA breach can destroy novelty. A 12-month grace period may exists in limited circumstances for certain disclosures, but it is a limited safety net, not a strategy, and does not protect you in many overseas markets.
- Software is patentable in limited circumstances: a claimed invention needs to produce an artificially created state of affairs of economic significance — abstract ideas, schemes, algorithms and mathematical formulae are usually excluded.
- Typical path: a low-cost provisional application locks in a priority date for 12 months, followed by a standard (complete) application, examination and grant. Standard patents last 20 years from filing (up to 25 years for some pharmaceutical substances).
- Engage a patent lawyer and attorney early for patentability and freedom-to-operate searches before you commit development spend.
Confidential information and NDAs
- Automatic protection: genuinely secret information disclosed in circumstances that import an obligation of confidence is protected under the general law, even without a contract.
- But use an NDA anyway: a written NDA (mutual or one-way) puts the obligation beyond doubt and gives you a clear contractual remedy — use one before pitching investors, demoing to customers, briefing contractors/manufacturers, or opening a due diligence data room.
- Key terms to check: a clear definition of “Confidential Information”, sensible carve-outs (already known, public, independently developed), a permitted purpose, no implied licence, a defined term, and return/destruction obligations.
- Practical habits: mark documents confidential, restrict access on a need-to-know basis, and remember an NDA protects secrecy — it does not stop someone who lawfully learns your idea from later filing their own patent.
Ownership and commercialisation
- Employees: IP created in the course of employment generally belongs to the employer, but this default can be varied by agreement — always include an express written IP assignment clause in employment contracts.
- Contractors and freelance developers — the most common gap: the default rule is reversed. An independent contractor generally owns the copyright/IP in what they create unless a signed agreement assigns it to the startup. Sign an IP assignment (work-for-hire) clause before work begins, not after.
- Founders: use a founders’/shareholders’ agreement with an IP assignment deed so all pre-incorporation code, designs and brand assets are formally transferred into the company.
- Open-source and third-party components: audit dependencies and licences before commercial release — some open-source (copyleft) licences restrict how you can license or sell your product.
- Brand clearance: search the IP Australia trade mark register and business/domain name registers before committing to a name, then register your core word mark and logo.
- Licence vs assignment: be clear in every commercial deal whether you are granting rights (licence) or transferring ownership (assignment), and scope exclusivity, territory and field of use carefully.
Quick-start checklist
- Have every founder, employee and contractor sign an IP assignment covering all work related to the business.
- Use an NDA before any substantive pitch, demo or technical disclosure.
- Talk to a patent attorney before publicly disclosing a novel technical solution: this includes prior to any academic or indeed any publication.
- Clear and register your brand name and logo as a trade mark.
- Keep a simple IP register (who created what, when, and under which agreement) — investors will ask for it and it will be needed in event of any dispute.