Enforcing Intellectual Property Rights: Lessons from Memtec
Australia is one of the most expensive countries in the world when it comes to enforcing intellectual property rights so it's important to be sure of your case by getting things right from the start.
Defending its patents, trade marks and copyright is very much the business end of intellectual property for Memtec Limited whose IP Manager, Bryan Dwyer, has some sound advice for companies faced with infringement of their intellectual property rights.
"The first thing is to be sure of your ground before firing off any letters alleging infringement. And when you're filing for a patent, make sure it has every possible chance of being held valid in any court of law.
"In the enforcement procedure it is necessary to instruct a lawyer in the country concerned and have the firm draft a letter to the alleged infringer. In most countries, there are laws pertaining to groundless threats of infringement (another reason for getting your facts right) so my advice has always been to not make the letter too rude, blunt or discourteous. Just state the facts, give patent number(s) and indicate your intentions clearly."
Memtec Limited is one of Australia's most sophisticated high technology companies and a world leader in continuous microfiltration. The company designs and develops speciality filtration products which, essentially, are flexible, fine pored sponge-like structures - sheets and tubes - made of chemically and physically modified nylons and other polymers. The sponge-like nature of the membrane surface ensures a three dimensional surface and it's this large surface area at the interface of the fluid being treated which reduces the amount of pressure and air needed to clean the filters and which has made Memtec technology so successful.
It's a technology of great importance worldwide. The growing scarcity of fresh water, alone, in some parts of the world is creating a strong demand for filtration equipment. Added to this are more stringent water standards, particularly in Europe and the US, which is literally driving customers to Memtec's door.
Memtec's strategy has been to develop the science of tailored membrane separation, patent the developments where possible and then exploit its patents by manufacturing and marketing the products or, where market forces dictate, by technology agreements or joint ventures.
Protecting those patents, however, has not been without difficulty and the company went through a steep learning curve. One of the smartest moves it made was to employ Bryan Dwyer to look after all the company's intellectual property. Mr Dwyer, a former patent examiner with IP Australia, has a Masters degree in Intellectual Property Law from the University of London and a great deal of practical experience in the management and protection of intellectual property.
"A lot of firms shoot themselves in the foot by leaving their IP protection to others. Everything that goes on in a company is intellectual property of one sort or another and it's best looked after by someone who understands and is committed to the company's objectives. Some IP you can protect by legislation, some you must keep secret and others you cover by employee agreements and educating your staff in IP matters," said Mr Dwyer.
"Whichever form of protection you take, managing and defending it is a complex and very time consuming business. Gathering information, instructing lawyers, attending meetings, reviewing correspondence and travel - just getting to the first court hearing stage can take years. In the meantime, the business can suffer."
Memtec's decision to employ Mr Dwyer to look after all this left the executives free to get on with running the business. And it's gone from strength to strength. Today the company has some 1000 patents and 600 trademarks registered and pending. Five research locations around the world are regularly producing new inventions, each one requiring as many as 30 patents around the world. As well, a marketing division is continually creating new words and symbols all of which must be protected.
"Many companies in Australia don't appreciate the importance of their intellectual property, nor it's value until someone steals it and then all hell breaks loose," said Mr Dwyer.
"And knowing this is only half the battle. You must also know the intellectual property system, which varies from country to country, and know how to work it to your advantage. There are a lot of hoops to jump through before you get a patent and if you miss a hoop you often don't find out until you're in court. It's vitally important to be thorough and to get things right at the early stages so that if or when problems arise in the future, you can be confident about enforcing your rights and be in a position to sue.
"Enforcement is very costly for small to medium sized enterprises but you've got to be prepared to defend your rights - a company which isn't should not bother about obtaining intellectual property in the first place."
This case study has been compiled by IP Australia