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This factsheet is currently being prepared by the Responsible Science team. It will provide an overview of the topic, explain its relevance to responsible research, and include practical guidance and further resources.
We appreciate your patience as we continue to develop the website.
This factsheet is currently being prepared by the Responsible Science team. It will provide an overview of the topic, explain its relevance to responsible research, and include practical guidance and further resources.
We appreciate your patience as we continue to develop the website.
Intellectual property (IP) is a category of legal rights that covers intangible things created by an individual or organisation. IP rights can be used to prevent others from using these intangibles without your permission. Permission is granted through explicit and implicit licenses that allow the use, rent, or transfer – in whole or in part – of the intangible asset in question.
There are a range of different types of intellectual property that may be relevant to researchers and research organisations. This factsheet aims to provide an overview of the main uses of each form of IP protection.
It is important to emphasise that IP rights are created and administered at the national level. While the types of IP rights are largely the same across the world, there are important local differences in their implementation, and they must be registered in each relevant jurisdiction where protection is desired (with the exception of copyright, which is automatic).
| Type of IP | What is Protected | Cost | Timeline for Grant | Duration | Strategic Considerations |
| Copyright | Specific creative expressions | Free | No grant required | 70 years after the death of the author | Only protects the specific expression (only prevents direct copying) |
| Patents | Inventions which are novel, useful, and non-obvious. | $10,000 -$20,000 | 6 months to several years | 20 years | Provides strong protection over an invention |
| Trade marks | Distinctive symbols (including words, sounds, colours, etc.) associated with a brand | Minimum $250 filing fees (not including lawyer fees) | Minimum 7 months | 10 years per registration, can be renewed indefinitely | Provides powerful and indefinitely
Only protects within categories of goods or services for which it is registered |
| Trade secrets | Confidential information
Breach of confidence is a legal action which provides protection when secrets are leaked |
Practical costs of secrecy | No grant required | No limit, unless secret becomes public | For legal protection to be available, secrecy measures must be in place |
| Design rights | The overall visual appearance of a whole physical product | Minimum $250 filing fee; lawyer fees ~$1000 | Within 6 months | 5 years, with the option of renewal for an additional 5 years | Provides quite limited protection over a specific design |
| Plant Breeder’s Rights | New varieties of plants | $3000+ | 2 to 3 years | 20 years (25 for trees and some vines) | Only covers plant varieties |
Copyright is a set of rights granted by the government to protect the particular form, way, or manner in which information or concepts are expressed. Copyright does not protect ideas, concepts, styles, techniques, or information, but rather the form in which these things are expressed. Other subject matter that is not able to be protected with copyright includes names, titles, slogans, people, and people’s images.
Copyright is administered and enforced on a country-by-country basis. In Australia, the relevant law is the Copyright Act 1968. Owners of copyright have several exclusive rights to control the use of their material and different rights apply to different types of material. Anyone who wants to use the copyrighted material needs to obtain permission from the copyright owner.
Although copyright laws are enforced nationally, international copyright treaties have resulted in broadly consistent protection across signatory countries, including mutual recognition of copyright and a copyright right term that generally lasts for the life of the creator plus 70 years.
Copyright protection generally extends to two categories of material: ‘works’ and ‘other subject matter’.
Examples of works include:
The ‘other subject matter’ category covers sound recordings, films, and TV and radio broadcasts.
Copyright protection is free and automatic. There is no need to apply in Australia as there is no system of registration.
To qualify for copyright protection, a work must be ‘original’. For the purposes of copyright, original simply means that the work has not been copied from another source.
Copyright is relevant to researchers because it governs how research outputs can be used, shared, and reused. Many common research materials, such as journal articles, images, datasets, software code, and teaching resources, are protected by copyright automatically when they are created. Understanding copyright helps researchers use third-party materials appropriately, share their own work under suitable terms, and navigate publishing agreements with journals or other publishing outlets. For example, researchers may choose to share their outputs under open licences such as those developed by Creative Commons, which allow others to reuse material under specified conditions.
It is also important in collaborative and institutional research settings, where questions may arise about authorship, ownership, and how and when research outputs can be disseminated or reused.
As with all intellectual property issues, your institution’s intellectual property office should be able to clarify and assist with any copyright related matters that come up in the course of your work.
In Australia, the use of copyrighted material to train AI models is a subject of ongoing debate. The Australian Government has definitively ruled out introducing a text and data mining exemption, and so there will be no carve out for AI developers to train their models on Australian creative works. Now, various other reforms are being debated such as the implementation of a collective or voluntary licensing framework. This case highlights the challenge of updating copyright rules to keep pace with emerging technologies such as generative AI. [1]
Freedom to operate is the process of ensuring that you are not infringing on intellectual property rights belonging to others. Where commercialisation is a goal, it consists of confirming that you will be able to sell your product or service without the possibility of another party making a legal claim against you.
It’s important that freedom to operate is checked early in the innovation process. If intellectual property (IP) infringement is proven against you, you will need to pay an ‘account of profits’ to the IP owner – a share of the profits that you have made. If an invention has been in the market for many years, this could be a substantial sum of money. An IP infringement claim might also require you to rebrand your business. Uncertainty in IP ownership may also be treated as a liability by potential business partners and investors.
It is worth emphasising that IP rights are specific to each country. That means that you will need to check your freedom to operate for each country that you are intending to trade in.
Filing for your own trade mark can be an effective defensive move against trade mark infringement. This is because trade mark searches and determinations are made during the application process. Once this is registered, the owner’s rights in the trade mark are legally protected. Alternatively, if the trade mark is rejected, at least the cost of rebranding a business is averted.
It is worth searching for any key innovations in your business processes or products. Because of the large number of ways that an invention can be described, it is worth engaging a lawyer if you are concerned that you may be infringing a patent.
Contracts are an extremely important legal tool. A contract is a binding agreement between two or more parties (persons or organisations).
To create a legally binding contract, a few things are necessary. A contract requires an offer to be communicated to a party, followed by unambiguous acceptance being communicated back to the offeror. A contract must be legally permissible, and cannot include illegal activities. There must be valuable consideration on both sides, meaning that each party receives and gives up something of value (though this does not have to be equal value. There must be sufficient certainty surrounding the key terms of the contract. Finally, any additional legislative formalities must be complied with. For example, there is no general requirement that a contract has to be in writing, but certain types of contracts (such as the sale of a business) have additional legislation which requires contracts to be in writing. In practice, it is highly advisable that all contracts are in writing, as verbal contracts are difficult to prove and enforce.
If a contract is breached, the normal way this is addressed by courts is to award monetary compensation to the party who suffered financial losses due to the breach of contract. The goal is to put the injured party into the financial position they would have been in if the contract had not been breached. However, if a term is deemed to be an “essential term” of the contract, also known as a “condition”, the non-breaching party may have the right to terminate the contract. A contract may also be terminated or rescinded if a court finds that its formation involved misrepresentations, misleading or deceptive conduct, duress, undue influence through a relationship of power, or other unfair or unreasonable conduct.
It is important to note that unlike intellectual property, contracts can only be enforced against the person who made the contract. For example, if somebody breaches a confidentiality agreement and gives your idea to a competitor, you would have no legal course of action against the competitor. Because of this limitation, contracts and intellectual property are frequently used together to control the circulation of important information. Contracts provide more powerful, flexible, and fine-grained control over information, while intellectual property rights provide protection in case the information ends up escaping the contractual relationship.
Contracts play a crucial role in the practical management of intellectual property. A licence is a type of contract which allows one party to use an asset which belongs to another party. All forms of intellectual property can be licenced to or from other parties.
If a researcher or research organisation develops valuable IP, commercialising it in-house is not the only option available. Instead, this IP can be licenced to another business. This is generally a less risky option, although it does involve ceding some amount of control over the commercialisation process, and potentially some of the profits. Another option is to make this intellectual property freely available to the public through an open access licence.
In collaborative research, such as multi-institutional quantum biology projects or partnerships between universities and biotech firms, contracts play an important role in determining who owns any intellectual property that arises from the collaboration. Without a clear agreement in place, disputes over IP ownership can delay or prevent the commercialisation of research outcomes. Key issues to address upfront include which party owns foreground IP (new IP generated during the project), how pre-existing background IP can be used by collaborators, whether ownership is shared or allocated to a single party, and what rights each party retains to use the results for future research or commercial purposes.
The full Federal Court of Australia upheld a decision that found the intellectual property rights of an invention developed by professor of surgery Dr Gray belonged to Dr Gray, not the University of Western Australia.[1] In reaching this conclusion, the Court examined the contract of employment that stipulated he was to conduct research, teach and conduct examinations, but contained no express obligation to invent. The contract also did not contain any express or implied terms relating to the ownership of intellectual property rights. This case highlights the importance of clear contractual terms within employment contracts between university and academics. [2] [3]
A trade mark acts as a shortcut to allow consumers to efficiently identify the nature, quality, and source of a product or service. It is a sign that identifies and distinguishes the goods or services of one trader from those of another. In this way, trade marks are valuable assets that can act as a ‘badge of origin’, and that can help to build a business’s profile, develop its reputation, and achieve its commercialisation objectives. Some of the most familiar trade marks worldwide are Apple, Microsoft and Google. In the context of quantum and biotechnologies, recognisable trade marks include IBM, Q-CTRL and SQC. In Australia, trade marks are registered under the Trade Marks Act 1995 (Cth).
Trade marks typically consist of names and/or logos that are applied to goods, or used in relation to services, but they can also be a letter, number, phrase, sound, smell, shape, picture, movement, aspects of packaging, or a combination of these. To receive protection under the Trade Marks Act, the trade mark must be registered under the Act. In Australia, a trade mark registration lasts for 10 years and can generally be renewed indefinitely for further 10 year periods. Protection for unregistered trade marks is available under the law of “passing off” or consumer protection legislation.
In addition to standard trade marks there are several other categories of marks. These include:
When a trade mark is registered under the Act there is a presumption of registrability. This means that if the application was made in accordance with the Trade Marks Act, the mark will be accepted unless there are grounds to reject it.
Grounds for refusing or rejecting a trade mark application include:
Trade marks are relevant to researchers and research institutions primarily in the context of commercialisation and industry partnerships. While trade marks do not protect scientific discoveries or technologies themselves, they protect the brands used to identify products or services in the marketplace. Universities, research institutes, and spin-out companies may use trade marks to distinguish products, services, programs, or platforms that emerge from research. Understanding trade marks can therefore be useful when research is translated into commercial applications, when institutions develop branded research initiatives or services, or when collaborating with industry partners who rely on trade marks to identify their goods and services.
Meta successfully opposed an Australian startup’s attempt to register the trade mark “ReelStar” for services including social media marketing and video transmission. The Registrar of Trade Marks found that the name was too similar to Meta’s short-form video feature “Reels”, and that its use could be likely to deceive or cause confusion. As a result, the trade mark registration was refused. [1]
This case highlights the importance of conducting thorough trade mark searches before launching a new brand. Failing to consider existing trade marks can lead to legal challenges, delayed launches, or the need to rebrand.
Patents are legally enforceable rights that are granted by a national government’s intellectual property authority. This is IP Australia within Australia. Patents are granted to inventors for new and useful inventions. Patents cannot be obtained for artistic creations, discoveries, mathematical models, plans, schemes, or purely mental processes.
Patent rights are not automatic. You must apply to the intellectual property office in each separate jurisdiction where you seek patent protection. In this regard, patent rights are limited to the jurisdiction in which they are granted. There is no such thing as a single worldwide patent. The maximum period of patent protection in most countries is 20 years from the date on which the patent application is filed.
After a patent has expired, any person can use the invention and can benefit from the disclosures made in the patent application. Furthermore, anyone can access the disclosed information, and produce and market the invention in any country where a patent has not been granted.
To obtain a patent, an invention must satisfy several criteria, the precise definitions of which vary from country to country. However, in general an invention must demonstrate:
Patents are relevant to research because they can shape and direct how discoveries move from the laboratory to real world applications. Securing patent protection can enable research institutions to collaborate with industry, attract investment and obtain support for the development of new technologies. Patent law can also affect when and how research findings are shared, since public disclosure may later prevent an invention from being patented. Understanding the basics of patents can help researchers and institutions make informed decisions about publication, collaboration and the potential translation of their work into practical, beneficial applications.
Ideally, if there is a desire to patent the outcome of research, legal advice should be obtained as early in the process as possible (generally this will be through the institution’s commercialisation office). However, the below list also has some practical steps for researchers in their own work.
PsiQuantum, a quantum computing company developing large-scale photonic quantum computers, has a patent portfolio covering photonic quantum methods, neutral atom quantum computing, trapped ion quantum systems, and quantum-classical hybrid architectures. These patents protect key components of quantum computing infrastructure and position the company as a significant intellectual property holder in the emerging quantum industry. As the sector grows, this portfolio may enable PsiQuantum to establish lucrative licensing agreements with other quantum technology companies seeking to use or build on these foundational technologies. [1]
Confidential information, also known as trade secrets, is information that is not publicly available and that the law protects from misuse or improper disclosure by a person who is under an obligation to keep it confidential (or secret). Confidential information is not property, but you can control access to it and license its use or transfer it to another person. In some circumstances, confidential information may constitute ‘know how’ or a trade secret. Confidential Information is often considered as an alternative to patenting, which requires public disclosure of the invention and know how in the form of the patent document.
Confidential information is only protected if it is, in fact, confidential and not publicly available, or if it would be difficult for the public to acquire the information except by unlawful means.
What to consider to appropriately protect the confidential information:
If confidential information becomes publicly available by any lawful means, including the circumstances detailed above, all rights to control its use and disclosure will be lost.
Confidential information can be protected by both express obligations between parties as well as implied obligations of confidence.
Confidential information is relevant to researchers because valuable knowledge, such as methods, processes, technical know-how, data, or research strategies, may be protected by keeping it secret. In some cases, maintaining confidentiality allows organisations to preserve their competitive advantage or protect commercially valuable know-how without seeking formal intellectual property rights such as patents. The main benefit is that the confidential information does not expire unless confidentiality is lost. In contrast, patents expire in 20 years.
For researchers and institutions, confidential information may arise in a number of situations, such as in collaborations with community or industry partners, during the development of commercial inventions, or when working with proprietary materials or datasets. Understanding how to identify and manage confidential information helps researchers comply with confidentiality agreements which can be in the form of employment or collaboration agreements, protect sensitive research information, and avoid unintended disclosure.
Apple has initiated legal action against a former employee accused of stealing trade secrets related to the Apple Watch and sharing them with a new employer. According to the complaint, before resigning the individual allegedly downloaded files containing proprietary information and organised meetings with other engineers to gather additional sensitive material. The case highlights the risk that confidential information can be misappropriated when employees transition between companies and underscores the importance of robust internal safeguards, clear exit protocols, and legal protections. [1]