ARGITECH Presentation by Len Mancini

•Patent and Trade Mark Attorney

AND IP •Intellectual Property Lawyer
 2020’s – Intersection of the Digital
Technologies and Agriculture

• Agriculture facing incredible challenges in 21C

• Catastrophic weather events, availability of water, supply

chain disruptions are challenges in agriculture today

• Who knows what the rest of the century will bring in terms
of further challenges

• Farmers need to embrace new technologies to remain

competitive and efficient in the face of these uncertainties

• Many of these new technologies will be derived from work

in startups like yours
 2020’s – Intersection of the Digital
Technologies and Agriculture

• Startups in the Agtech sector are no different to those in

other industries.

• They do face additional obstacles – traditional funders of

startups do not usually operate in the agriculture and
farming space. Farming is new to them.

• So your challenge is twofold –

• having to first educate your potential business partners
and funders and
• then to actually implement your ideas and get traction
in the often fragmented agriculture sector.
 2020’s – Intersection of the Digital
Technologies and Agriculture

• Startups in the Agtech sector are no different to those in

other industries.

• They do face additional obstacles – traditional funders of

startups do not usually operate in the agriculture and
farming space. Farming is new to them.

• So your challenge is twofold –

• having to first educate your potential business partners
and funders and
• then to actually implement your ideas and get traction
in the often fragmented agriculture sector.
 2020’s – Intersection of the Digital
Technologies and Agriculture

GENERAL STARTUP STRATEGY

• Deliver a unique solution that aligns with people’s needs

• Know your customer

• Refine your business model IP

• Assemble a robust team

• Execute and scale

 2020’s – Intersection of the Digital
Technologies and Agriculture

IP TIPS FOR STARTUPS

• Identify your IP and categorise it:

• Essential and core IP
• Other IP

• Protect core IP essential for the execution of your business plan

• Create a legal vehicle and vest your IP into it.

• Ensure all employees, contractors, product testers executes legal

agreements to contain your IP in your legal vehicle.

• Formalise all engagements with distributors and partners and

issue licences for all IP involved in the transaction
 What is Intellectual Property

TANGIBLE VERSUS INTAGIBLE ASSETS

Source: March 5, 2015, OCEAN TOMO

What is Intellectual Property
What is Intellectual Property
Patents
• Are temporary monopolies (20 years)
provided to inventors who disclose their
inventions fully in published patent
applications.

• Are granted in respect of inventions that

are new and inventive (not obvious to a
person skilled in the art – and can be up to
12 months self-disclosed in the market)

• Recently a new limitation is that they need

to be patentable subject matter.

• They must be useful- ie must work!

• They must not be secretly used.

Patents

• Can claim:

• Apparatus ie tools or machines

• Compositions of matter – eg a chemical

or mixture of chemicals

• Functional products

• New methods to making old things

• Methods of treatment (including

humans)
 Patents
There are various parts to a
patent and lots of useful
information on the front page
including

1. Title
2. Date the patent was granted
3. Date the patent application
was filed
4. Who the inventors are
5. Who the applicant is
6. It will tell you whether it is a
granted patent or a
published application.
7. It will list closely related
prior art
8. It will often have an abstract
or short summary and a
figure to give you an idea of
what it is.
 Patents

Background to the Invention – for known problems-

sets out the problem to be overcome, the state of the
ways to deal with the problem and what shortcomings
they have, and then how the present invention
overcomes those shortcomings.
 Patents

Summary of the Invention – is where the inventor first

describes their solution to the problem
 Patents

The next important section is the detailed description

and the drawings which are read together
 Patents

The most important section are the claims

 Patents

The next important section is the detailed description

and the drawings which are read together
 Patents

www.patents.google.com – for access to a lot of

patents including Australian patents
 Registered Designs
• Registered designs are statutory monopolies like
patents that are required to be applied for to obtain
a 10 year monopoly in the market

• They cover either or both of:

• The shape of a product
• The surface pattern of a product

• The shape or pattern has to be new and distinctive

(at most 6 months prior publication is OK).

• You cant register an old design as a registered

design it must be new and look different to prior art
designs
 Registered Designs
• Unlike patents they are REGISTERED before they
are examined in any substantive way.

• In other countries they are examined then

registered.

• In Australia we call a registered design that has

been examined and considered new and distinctive
– CERTIFIED

• A “REGISTERED” design in Australia is no

guarantee that the owner can enforce that design
as it hasn’t undergone examination.
Registered Designs
Registered Designs
Trade Marks

• Protects the use of “signs” in trade and

commerce where the sign is used as a badge
of origin.

• • Signs include: any letter, word, name,

signature, numeral, device, brand, heading,
label, ticket, aspect of packaging, shape,
colour, sound, scent or even movement.

• Requirements for registration

• distinctive
• capable of graphical representation

• Can be owned indefinitely with payment of

renewal fees
 Trade Marks

1) Business Names

• A business name is a TM. A business name

registration does not equal a TM registration
and gives you NO RIGHTS to the name like a
TM registration does.

• At best a registered business name will qualify

as an unregistered or common law TM which
have less rights than registered TM’s

• Can be your company’s name or it can be just

a name you trade with.
Trade Marks
Trade Marks
 Trade Marks

TM MUST BE DISTINCTIVE TO BE REGISTERED

• That is other traders would not want to use it
to describe their goods/services; and/or
• that your mark has become distinctive for you
in the marketplace.
Trade Marks
Trade Marks

TM MUST NOT BE DECEPTIVELY SIMILAR TO

PRIOR REGISTERED MARKS
Trade Marks

TM MUST NOT BE DECEPTIVELY SIMILAR TO

PRIOR REGISTERED MARKS
COPYRIGHT
Protects the expression of an author or artist.

• Works protected include:

- Literary works (books, manuals,
compilations)
- Artistic works (photographs, drawings,
sculptures)
- Musical works (musical score)
- Sound and Video Recordings
- Computer programs

• Requirement for subsistence (no registration

in Australia is required for enforcement):
- Original work – not copied
- Have human author or authors – NO AI!
 COPYRIGHT
In a business setting such as a startup the CR works
may comprise:

1. Pitch Decks
2. Business Plans
3. Drawings for products
4. Employee or workplace manuals
5. Software code developed from scratch
6. A/V recordings
7. Website material
8. Photographs

It is important that you document the author details for

core works that you will use and others may
potentially copy so you can assert them at a later date
(often decades down the track)
COPYRIGHT/DESIGNS OVERLAP
TIPS FOR PRODUCT DESIGNERS

1. DON’T RELY ON COPYRIGHT.

If you have a drawing of a product don’t think you

can enforce that drawing as copyright work if it’s a
product you intend to sell commercially.

2. COPYRIGHT CANNOT BE ENFORCED IN RESPECT

OF CORRESPONDING DESIGNS
If you commercialise a product the copyright can no
longer be enforced, usually after you sell 50 items
(but less depending on the nature of the item)

3. You must file a registered design if you want to

protect the shape of a design.
TRADE SECRET/CONFIDENTIAL INFO
1. Quite important for startups when there is no other
protection in place.

2. Are contractual in nature for the most part.

3. Employees can be stopped from using trade secrets in their

next job but more difficult with confidential information that
they can walk out with in their head.

4. Before you sign an NDA check if its mutual or one sided or

limited in term. 3 years is NOT a long time.

5. Good NDA’s that you get people to sign should have a

clause that says that any unauthorised use the recipient
makes of the information, including any new works, are
owned by the discloser and shall be subject to assignment
to the disclosing party if not able to vest directly in the
disclosing party.
 TRADE SECRET/CONFIDENTIAL INFO

• Method of manufacturing non reverse

engineerable products

• Non reverse engineerable processes e.g.

treatments

• Customer lists, supplier lists, database of

contacts

• Recipes

• Internal process manuals and product

specifications
PLANT BREEDERS RIGHTS
• Protects new plant varieties.

• Requirement for registration:

- variety must be distinct, uniform and stable
- have a breeder (which can include someone who
discovered a mutant sport)
 CIRCUIT LAYOUT PROTECTION
• Protects the 2D plans or layout of integrated
circuits or chips.

• Requirement for subsistence (not registered in

Australia):
-layout must be original and have an author
 HATCHTEK PARTICIPANTS
• Trade Mark
• There are 53 TM registrations
incorporating LEADING EGDE.
Would benefit from a TM that can
be protected. Also run the risk of
infringing others.
IP issues:
• Worked with university staff to
test and deploy
• When working with universities
during any R&D phase or even in
testing phase, its important to get
an agreement that says that you
own all of the IP generated. They
will generally require a
publication right that can be
provided subject to your deciding
when they can publish.
• Is it still Secret/Patentable
• Similar to above, ensure product
testing with potential customers is
done confidentially (as possible)
and no charge is made for the
product/service otherwise the 12
month grace period kicks in.
 HATCHTEK PARTICIPANTS
IP issues:
• May be a patentable process if it is new. May also get a claim to a
old product by the new process if the spray drying technique is
new.

• If the process is not new, and the end product is not new, then it is
what we call a business method and these have been
unpatentable for over 10 years in Australia.

• If that is the case then trade mark protection, copyright and

confidential information would be the way to protect the
uniqueness of the offering.
 HATCHTEK PARTICIPANTS
IP issues:
• May still be patentable even if made public recently (12 month
grace period)
• The devices in the system are the aspects that can best be
protected. The online portals and communication systems unlikely
to be patentable if built conventionally. Must be an advance
technologically for there to be patentable subject matter today.
If the monitoring system checks for something that no one else
checks, then this will assist in arguing patentability.
• Shepherd not common on TM Register but there is one registration
that could be infringed. Best to register your own TM as that
provides a defence to TM infringement.
 HATCHTEK PARTICIPANTS
IP issues:
• Software invention – very difficult to protect by patent. Not
impossible but in Australia will require innovative advance in the
actual “computing”.

• Will be best served by: contractual terms for users inc software
licences.

• Consider anti-circumvention measures which are enforced by the

Copyright Act. Dongles and product keys etc to reduce piracy.
 HATCHTEK PARTICIPANTS
IP issues:
• Electronic products – will be protected automatically by circuit
layouts protection but that’s not that great.
• If new and inventive – can file patent applications for those aspects
of the devices.
• Should consider registered designs to protect the look of the
products.
• A good trade mark will also help – particularly if not descriptive and
distinctive. EG. ANKER for power products. Means nothing, great
TM.
 HATCHTEK PARTICIPANTS
IP issues:
• Looks like new or old processes to create new products.

• The products and/or the processes are likely to be patentable.

• Need to ensure the confidentiality of the processes particularly if

no patents are applied for and reliance is placed on confidential
information/trade secrets.