The 2024 IP Australia Report was recently released, detailing the utilisation of registered intellectual property rights in Australia. It revealed that Australian companies demonstrated resilience in the face of “global economic challenges”, experiencing a notable upsurge in domestic IP filings across all registered rights, including trademarks, design rights, and patents, in 2023.

The report outlined that trademark applications by Australians increased by 9.8 per cent, nearing the record levels observed in previous years. The report also indicated a 7.2 per cent overall global increase in trademark applications, totalling 84,476, signifying a substantial influx of new products and services entering the market.

Filings for design rights increased by 11.5 per cent, reaching a record high of 8,776. The report revealed the “strongest growth among Australian applicants was in energy equipment such as electric motors, generators, batteries, and solar panels”.

Elsewhere, the report detailed that there was a 2.4 per cent increase in domestic patent filings. However, there was a slight decrease in overall patent filings, primarily attributed to a reduction in fillings from the US.

It further indicated that Australia is “the second fastest-growing destination for new clean energy patents” and that “the contribution of small and medium businesses is increasing in Australia”.

What do the Australian IP report findings mean for the IP landscape in Australia?

To understand what the findings say about the IP landscape in Australia, Lawyers Weekly sought insights from two senior practitioners: Mark Metzeling, principal within Macpherson Kelley’s Brisbane-based commercial team, and Stephen Annicchiarico, the director of WRP Legal & Advisory and leader of the firm’s IP and technology practices. Both told this brand that the report indicates Australia’s positive trajectory and advancement in the field of IP.

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Metzeling emphasised that the report highlights that “the IP landscape in Australia is maturing” and that “businesses, in particular SMEs, are understanding the importance of IP in maintaining their competitive edge and adding value”.

As a result of that, he revealed that “more SMEs are seeking to secure a monopoly over their distinctive brands, the look of their products, and their ideas”.

He also noted that there will be a “rise in IP protection” through the government focusing more on domestic manufacturing.

Annicchiarico underscored that the report indicates that “Australia is a breeding ground for innovation and that Australian businesses value (and understand the importance of) protecting their intellectual property rights”.

What will constitute best practice for IP lawyers moving forward?

In Australia, lawyers in the field of intellectual property must understand the best practices to serve their client’s interests in the evolving landscape.

Annicchiarico expressed that the ongoing increase in the registration of IP rights is expected to generate a heightened demand for legal services for this domain.

“Such results mirror the increasing demand for intellectual property legal services, and IP lawyers will need to find new ways to meet such demand (which will only be further fuelled by Australia’s growing digital landscape),” Annicchiarico said.

He recommended that lawyers openly embrace new technologies to address the growing demand for legal services.

“IP lawyers should be open to utilising new technologies (such as artificial intelligence) to meet this increasing demand, without compromising the accuracy, speed and overall quality of their services,” Annicchiarico suggested.

Metzeling discussed the challenges in defining best practices for IP lawyers. However, he reflected on his own experience in which he aims to offer “law fit for business”.

He said: “What this means is that we focus on commercial results for our clients. Whether a brand, look of a product, or invention is protectable/registrable is only one question to be asked”.

By having this approach of “placing a commercial overlay on top of that answer”, Metzeling emphasised that “we can advise the client as to whether it is commercially viable to secure protection for the item(s) of IP and develop tailored advice for the implementation of an IP protection, commercialisation and enforcement strategy”.

Metzeling expressed that this approach holds excellent benefits as “assessing the IP portfolio as a key cog of the overall business (and not in isolation) enables us to deliver meaningful, commercially appropriate advice”.

Can Australia maintain these record-high IP results?

Both lawyers firmly believe Australia will maintain its current trend of achieving record-high IP results as the market endeavours to recover to its pre-pandemic state.

Metzeling said: “It is evident that the IP results are not yet at the levels we saw pre-pandemic across the board. This, coupled with the rise in appreciation of IP as a valuable business asset in the Australian SME environment, is likely to lead to a continual increase in businesses seeking IP protection in Australia, at least for the short term.”

Annicchiarico also attained similar views, suggesting: “These findings only further evidence that Australia is a breeding ground for innovation and that Australian businesses value (and understand the importance of) protecting their intellectual property rights.”

How can Australian companies enhance their IP protection?

In response to the growing complexity of Australia’s IP landscape, Metzeling and Annicchiarico offered companies advice and strategies to enhance their IP protection in this evolving environment.

Annicchiarico provided three recommendations for new and emerging businesses to enhance their IP protection proactively. This includes:

1. “Being proactive and seeking to protect (and if applicable, register) their intellectual property rights;
2. “Documenting engagements with stakeholders (and not simply relying on ‘handshakes’ or the ‘word’ of others); and
3. “Obtaining advice and guidance from experts to help steer them in the right direction.”

“As IP lawyers, we are often approached by clients when there are already problems, conflicts or disputes – all of which could have easily been avoided if the clients were more proactive and obtained the correct guidance earlier in their commercialisation life cycle,” Annicchiarico said.

For well-established businesses that already have sufficient IP protection in place, Annicchiarico said: “It is important that they regularly review and revisit the scope of their protection, and monitor any potential infringements, as the protection of intellectual property rights is an ongoing process that needs to be continually cultivated.”

Metzeling expressed that one of the simplest ways for companies to improve their IP protection is by maintaining an IP register.

He said: “This will require an initial investment in time and finances in the conduct of an IP audit (especially, if an IP lawyer is engaged to assist, which Is recommended). However, this is the best way to identify what IP your business creates, owns, licences, and uses. If done correctly, it will also identify how and who is involved in the creation and protection of its IP.”

Metzeling also emphasised that the “ownership structure of the business” is often one of the most overlooked integral aspects when regarding IP protection.

He noted the importance of this by expressing that they “dictate which entities own existing and future IP, and how that IP is allowed to be used.”