The-Gatherer-Volume-8

Volume 8

THREE IP TIPS TO WRITE INTO THE OPENING ACT OF YOUR START-UP JOURNEY

INDUSTRY 4.0 REVOLUTION Advanced manufacturing for the future PIONEER Checkbox founder Evan Wong CANNABIS TRADE MARKS No longer up in smoke

EDITORIAL TEAM

CEO MESSAGE

REBECCA HEMBLING Head of Business Development & Marketing rebecca.hembling@wrays.com.au JESSICA LAVLLE Marketing & Business Development Consultant

jessica.laville@wrays.com.au LOUISA TAYLOR-BOND Graphic Designer, Reflect Design louisa@reflectdesign.com.au CONTRIBUTORS ALBERT FERRALORO Principal albert.ferraloro@wrays.com.au TIM FRANCIS Principal tim.francis@wrays.com.au PHILIP GEHRIG Principal

I ’m thrilled to share the latest edition of The Gatherer with you – our regular flagship publication developed to inspire our clients and aide them in their continued growth and education. The Gatherer seeks to provide you with the most relevant insights and news into the ever-changing intellectual property landscape, both in Australia and across the globe. In this edition, we bring you insights, perspectives and information across a range of topics, including the impact of legalising cannabis on our trade mark market, imminent changes to our consumer data rights, the impact of geographical indications on our trade deal with the EU, and the opportunities for disruption women are creating in STEM. Medicinal cannabis has become a hot topic in recent years, with major nations across the globe preparing for a paradigm shift on its acceptability in the modern society. Australia is on the cusp of this shift, with more than 20 medical cannabis related companies listed on the ASX last year. However, the law stipulates that a trade mark cannot be registered if it contains ‘scandalous matter’ or the use of which would be contrary to law.

Evan Wong, founder of RegTech startup Checkbox – a multi- award winning platform that is transforming regulation into software – recently took some time out of his busy schedule to drop into Pioneer headquarters to chat to Wrays’ CEO Rob Pierce about his remarkable entrepreneurial career which (spoiler alert!) commenced long before Checkbox began. This edition of Pioneer, our podcast series for serious innovators, offers an intriguing insight into the professional evolution one of the RegTech industry’s youngest innovators. With so much happening in the intellectual property landscape, I hope that this publication brings to light some of the exciting trends we’re observing – or that you’ve discovered something new! As always, if you’d like to be part of our Pioneer series or contribute content or ideas for future editions of The Gatherer, please contact a member of our editorial team – they’d love to hear from you.

Jennifer McEwan explores the dilemma between these legal

principles with the multi-billion dollar global medical cannabis market and how they should be reconciled. The fourth industrial revolution is here! And the Internet of Things is not only providing us with consumer goods, like smartwatches and smart light bulbs, but it is also changing the way we manufacture. Earlier this year, our good friends at Sheda attended Hannover Messe, the world’s biggest manufacturing fair, and have kindly provided a contribution to update our readers on the newest trends in the manufacturing industry. As a start-up, you’ve probably got a lot on your to-do list, from completing your MVP to refining your business model and planning your strategy. If you’re wondering whether you have the time and budget to make intellectual property a priority over everything else you need to do, then Adrian Huber’s top IP tips is a must read. Adrian explores the importance of IP and shares some of the most common pieces of advice we routinely give to our start-up clients.

CONTENTS 3

Message from our CEO

4

Cannabis trade marks - no longer up in smoke

7

OneMusic brings one-stop music licensing to Australia

philip.gehrig@wrays.com.au REBECCA HEMBLING Head of Business Development & Marketing rebecca.hembling@wrays.com.au ADRIAN HUBER Special Counsel adrian.huber@wrays.com.au CHRIS JUHASZ Principal chris.juhasz@wrays.com.au JAYDEN LEE Associate

8

In the spotlight with Bindhu Holavanahalli

10 Industry 4.0 revolution - advanced manufacturing for the future 13 Women in tech - stronger together 14 PIONEER: Evan Wong, founder of Checkbox 18 Three IP tips for the opening act of your start-up journey 20 BREXIT update 22 LES: Is it for you? 24 The IP Perspective with Chris Juhasz 26 Is your product protected by geographical indications? 28 Industry Insider

jayden.lee@wrays.com.au JENNIFER MCEWAN Principal jennifer.mcewan@wrays.com.au JUDITH MILLER Principal judith.miller@wrays.com.au ROBERT PIERCE CEO robert.pierce@wrays.com.au EIKE ZELLER Head of IoT Product Development at Sheda

30 Welcome to Wrays - Philip Gehrig 31 WHAT’S ON: Calendar of Events

ROBERT PIERCE CEO T +61 8 9216 5115 robert.pierce@wrays.com.au

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CANNABIS TRADE MARKS No longer all up in smoke

Medicinal cannabis has been the hottest topic in the recent years, with major nations across the globe preparing for a paradigm shift on its acceptability in the modern society. In 2017, the global medical cannabis market was estimated to be worth more than US $11 billion and is expected to grow to approximately US $37 billion by 2023. The Australian industry has begun to bloom with more than 20 medical cannabis related companies listed on the ASX in 2018. Market intelligence firm Pitcher Partners valued the Australian medical cannabis market in 2017 at $17.7 million and estimates that it could grow to $3 billion by 2028. Given these projections, it is no wonder that more Australian companies and start- ups are seeking their glory in the medicinal cannabis industry, and as the likes of entrepreneurial giants Google, Apple and Facebook have taught us, in front of every successful business is a strong and prominent trade mark. In 2016, medicinal cannabis was legalised at the federal level through the Narcotics Drugs Amendment Bill 2016. This allowed businesses to apply for licenses to cultivate cannabis products legally, but only for medicinal or research purposes and does not cover large-scale manufacturing. The granting of the licenses is heavily regulated at the federal level by the Office of Drug Control. The various states and territories have differed in both their approach and the speed with which they embraced this change. Queensland, Western Australia, South Australia, Tasmania, ACT and the Northern Territory have embraced the government’s decision and leave the granting of such licenses to the ODC. Victoria and New South Wales followed suit, but have also implemented their own state legislation that requires an additional set of state-certified licenses to also be issued if the company also wishes to manufacture on a larger scale. AUSTRALIAN POSITION

GLOBAL POSITIONS

As of 2018, 33 states in the USA have legalised the use, and presumably sale, of medicinal cannabis. However, the cultivation and production of research-grade cannabis as well as clinical research on cannabis still require approval by the Food and Drug Administration as well as a license issued by the Drug Enforcement Administration due to its classification as a Schedule I drug. In December 2018 the European Monitoring Centre for Drugs and Drug Addiction, provided their first report on medicinal cannabis, stating that many EU countries now allow, or are considering allowing, the medical use of cannabis. On 13 February 2019, the EU voted positively on a resolution that would help advance medical cannabis in member countries. While the resolution is non-binding, it seeks to incentivize increased access to medical cannabis, prioritising scientific research and clinical studies. The EU currently allows member countries to regulate their own cultivation and use of medicinal cannabis. In the UK cannabis is illegal to possess, grow, distribute or sell cannabis. It is a Class B drug, with penalties of imprisonment and/or fines for unlicensed dealing and production. Cannabidiol oil is legal for use and sale in the UK without requirement for a doctor’s prescription, as long as these medications do not contain more than 0.2% tetrohydrocannabinol, which is the chemical psychoactive constituent of cannabis. Canada is the most progressive country in the world in regards to the legalisation of cannabis. Subject to some restrictions, adults who are 18 years of age or older are legally able to possess 30 grams of cannabis and grow, from licensed seeds, up to 4 cannabis plants per residence for personal use. South-East Asian countries have been much more conservative with cannabis. In Singapore, Malaysia and Indonesia, trafficking of any cannabis attracts capital punishment. Thailand is the first country to take a step into this growing industry, by voting in 2018 to legalise cannabis for medicinal and research uses. The new legislation will only take effect once it has been published in the Royal Thai Gazette. Therefore any production of cannabis, even for medical or research purposes, remains illegal until that time.

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OneMusic brings one-stop music licensing to Australia (Except for cheese-makers?)

INTERACTION WITH TRADE MARK LAW

United Kingdom has a general blanket ban on trade mark registrations for cannabis and cannabis related products as they view it as being associated with illegal drugs. In the EU there is no harmonised law on cannabis, including its trade marking, with the responsibility resting on each EU member state, although they are bound by their obligations under various United Nations drug control treaties. The Thai Trademark Act regulates what trade marks are registrable in Thailand and appears to concentrate more on whether the applied for trade mark implies association with the King, the Royal Family or any governmental and ministerial departments. It includes a single clause prohibiting ‘any mark which is contrary to public order, morality or public policy’. There currently appears to be only one registered cannabis trade mark in 2002 with 3 more filed in late 2018-early 2019 awaiting acceptance, suggesting cannabis trade marks are still highly scrutinized. Recent amendments to the Narcotics Drug Act legalising the cultivation, production and use of cannabis for medical related purposes in Australia, has paved the way for trade marks covering medicinal- cannabis products to be registered in Australia. A similar progressive process is happening around the globe, with many major nations also legalizing medicinal cannabis and having the same flow-on effects in their trade mark legislation. However, what is capable of being trade marked is still limited by the legal restrictions placed on medicinal cannabis related products in each country. Thus, businesses entering this industry should obtain independent trade mark advice prior to embarking on the trade mark registration process. If you have any questions in relation to this topic please contact a member of our specialist team at Wrays. MOVING FORWARD

Australian trade mark law stipulates that a trade mark cannot be registered if it contains ‘scandalous matter’ or if the use of which would be contrary to the law. As the promotion, production and sale of cannabis on any basis was previously illegal, any trade mark for cannabis including medical cannabis would be subject to such scrutiny, thereby allowing the Australian Trade Marks Office space to object. Additionally, registrations for such trade marks would also be vulnerable to opposition/ cancellation by third parties on the basis that there could be lawful use of the trade mark in Australia. The recent amendments to the Narcotics Act means that the previous basis for objecting to such trade marks has eroded. However, the limits of the amendments must be considered when determining what is and is not capable of being trade marked. In all states, any production, cultivation or use of cannabis in any capacity other than medical is still illegal, and thus any trade mark for a business that operates in that sense is still contrary to the law. In the USA, the United States Patent and Trademark Office have repeatedly refused to grant registration to cannabis related trade marks as the use of cannabis marks for cannabis products or services is prohibited by the Control of Substances Act and therefore cannot be lawfully used in commerce. State trade mark registrations may be available, although they do not offer the same protection as a federal registration. Federal trade mark registrations may also be available for ancillary goods and services which are indirectly related to cannabis. So services that, for example, provide a marketing platform or are purely informational may be registrable at a federal level. In Canada, regulations were published on 11 July 2018 placing restrictions on marks for cannabis products that may appeal to children or marks that glamorise it. Although Canada has opened the door to trade mark registration for cannabis products, care is still required in the selection and filing of trade marks since the government has clearly signalled that it does intend to control all aspects of promotion and sale of legalised cannabis products. The UK Trade Marks Act stipulates that a trade mark will not be registered if it is contrary to public policy/accepted principles of morality or its use is prohibited by any enactment or law. The Intellectual Property Office of the

O n 1 July 2019,

The initiative is called OneMusic, and it brings together in one bundle licences of all of the copyright works in each of the PPCA, APRA and AMCOS catalogues. Think musical works, sound recordings, music videos and the like. Previously, PPCA would issue licences of things like sound recordings and music videos, and APRA AMCOS would do the same for music and lyric copyrights, and businesses who wished to use these works would need to obtain separate licences from each of those organisations. This initiative seeks to cut administration time and increase uptake of music licences. A similar initiative has been operating in NZ for about 6 years and the Australian version will hopefully benefit from the lessons learned in making that initiative the success it is today.

The new licences are presented in a user friendly portal on the OneMusic webpage, from which licensing enquiry forms can be obtained and in some cases be submitted online. The licences on the portal aim to cover most types of business-related music copyright licence needs. Curiously, although OneMusic trumpets the ability of music to affect the flavour of cheese, with hip hop music imparting a stronger, fruitier taste, there are no cheese-making licences on the portal. This begs the question – if a beat drops in a forest (of cheese) and no-one (except the cheese) hears it, does it need a licence? One presumes the answer is yes, but time will tell whether it gets its own category at OneMusic.

APRA, AMCOS and

PPCA launched a joint initiative in Australia aimed at making music licensing

easier and simpler to access for Australian businesses.

TIM FRANCIS Principal

JENNIFER MCEWAN Principal

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I’ve found in my conversations with artists, innovators and other creatives that there are lot of misconceptions about IP rights as well, such as exactly what is protected by copyright, and how copyright comes into effect, so it’s good to be able to address some of these issues when I get to speak with creatives. Q: What in your opinion are some of the key challenges innovators, artists and other creatives face in today’s environment? A: The age of social media and the internet is presenting some really interesting issues around the IP space for artists and other creatives. On one hand, many artists such as photographers and musicians rely on the reach of social media to gain widespread exposure for their content. However, social media also makes it difficult for the artist to practically control the way in which that content is used and disseminated. It can therefore make it difficult for creatives to earn a fair wage for the content they create, even if that content is consumed by a lot of people. The technology is also moving at such a pace that it is difficult for the law to keep up.

Q: As an intellectual property lawyer, working in both our brand protection and litigation teams, what types of clients do you most frequently work with? A: I work with a wide range of clients, from start-ups and small businesses still establishing themselves and their brands, right through to large multinational companies keen to grow their IP portfolios and enforce their IP rights. As I work in the Life Sciences space in litigation, I work with mainly pharmaceutical and other medical companies. In the brand protection area, I work with clients from diverse industries. One thing that all of my clients have in common, regardless of their size or industry, is that they recognize the importance of IP to their business. The thing about IP is that businesses of all shapes and sizes can benefit from ensuring that their brands and innovations are protected. It’s also important for businesses that are starting out, or embarking on new projects, to ensure that these initiatives do not infringe the IP rights of others, so a lot of the clients I work with consider IP from this perspective as well.

Q: A little birdie told me that you sing magnificently! How did you find your way to us at Wrays? And how do you balance your artistic and creative side with the pressures of legal practice? A: Who told you that?! I initially came on board at Wrays as a winter law clerk whilst studying at University. I stayed on as a paralegal while finishing my studies and started as a law graduate (after a long holiday!) once I finished my studies. I’ve been here for five years now. It’s great having a creative outlet outside of the world of legal practice and doing something completely different to what I do day-to-day at work. One thing that is similar between the two is that I have the pleasure of meeting a lot of talented and creative individuals with great ideas both working as a musician and as an IP lawyer. I think having a serious hobby or pursuit outside of work is a great way to have a proper work-life balance and helps me be a better and more engaged lawyer. Q: Have you ever had the opportunity to use your knowledge of intellectual property law to assist artists, innovators or other creatives? A: Certainly – IP issues are constantly popping up for musicians and other artists – from copyright in their songs and compositions, to terms and conditions on websites and social media where artists share their creations and content, as well as agreements with publishers, record companies and other businesses in the arts industry that creatives deal with on a regular basis.

IN THE SPOTLIGHT BINDHU HOLAVANAHALLI

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While automation is pervasive in manufacturing, humans still play a big part in the manufacturing process, we are now assisted by a mix of collaborative robots, or Cobots

or product directly to a customer to a servitisation business strategy. Instead of just selling a product, the producer is selling the use of the product, providing access to the device or equipment with on-going maintenance for a subscription fee, this reduces the CapEx required for customers to modernise their infrastructure and creates a predictable revenue stream for the manufacturer.

The Internet of Things is enabling new business models One of the most exciting developments of Internet of Things being introduced to the manufacturing industry is the wealth of new business models and new value it enables for manufacturers. I noticed a growing trend of businesses moving from a traditional model of selling a device, equipment

for short and AI. At Hannover, several companies demoed production assistance systems.

These systems used computer vision to track the actions of workers and notify them when mistakes are detected, allowing for corrections early on in the process and resulting in a lower defect rate at the end of the manufacturing process. One of the big promises of Industry 4.0 is enabling the fabrication of highly customised and even personalised goods. SEW Eurodrive, a company known for producing conveyor belt motors, demonstrated how the car assembly of the future would be used to create customised cars which might have different fabrication steps and require a flexible assembly line. Automated Guided Vehicles or AGVs are used to transport cars through the factory floor. Factory workers wear smartwatches which they use to signal when they are available to carry out the next step in the assembly process. AGVs drive the car being assembled or the tools and parts a worker might need to the worker, enabling them to carry out the next step in the assembly process.

INDUSTRY 4.0 REVOLUTION How the Internet of Things i s transforming the manufactur ing industry

T he Internet of Things (IoT) is not only providing us with consumer goods like smartwatches and smart light bulbs, it is also changing the way we manufacture. In April I represented Sheda at Hannover Messe, the world’s biggest manufacturing fair to explore the newest trends in the manufacturing industry.

The fourth industrial revolution is here Industry 4.0 was a huge topic at Hannover Messe, I’ll be outlining some examples of the companies and products I encountered at Hannover Messe but first, what’s Industry 4.0? Industry 4.0, or sometimes called the fourth industrial revolution, is the next evolution in automation, where machines and sensors are receiving real-time data as part of the fabrication process and making decisions based on this information. These machines with sensors are usually networked and connected to each other and are referred to as Internet of Things devices. Data analytics tools and artificial intelligence provide constant optimisation of the different manufacturing steps and the process as a whole. All this results in a highly optimised and efficient use of time and resources. An example of this I saw at Hannover Messe was from a company called Zeiss. They demonstrated a spectroscopy system analysing the colours as well as fat and moisture content of potato chips in real-time in order to guarantee that the chips look and taste as expected.

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Take a generator, for example, the traditional model is to sell to the customer or to rent it for a certain time frame. The company that retails or leases out the generator didn’t know if it used for 1 hour over the rental period or if it was running 24/7. By turning the generator into an IoT device it is possible to rent out to the generator only for the time it is actually being used and possibly to multiple consumers. This reduces the investment and financial risk for the customers. In turn, the producer can generate multiple revenue streams and obtain more data about how the generator is used, which allows for the optimisation of the product and a better understanding of the customer which can lead to a more comprehensive offering. The Future of Australian Manufacturing Servitisation is a pretty big trend around Australian companies too. Most recent example in the consumer space is Nuraphone who is offering its high-end headphones on a monthly fee instead of $500 upfront. If the customer decides not to pay anymore Nuraphone will simply disable your headphones and you can send them back. Focusing on providing a service rather than just selling a product usually generates larger value because the customer is engaging in a longer relationship.

There are some excellent Australian organisations that provide help to Australian manufacturers who are on the journey of transforming their organisations for a digital and service oriented future. The Advanced Manufacturing Growth Centre just launched the Manufacturing Academy, an online platform showcasing the stories of manufacturers on their digital transformation journey. The Innovative Manufacturing CRC developed FutureMap, a tool to help manufacturing SMEs to assess their current state of business and identify areas to transform and future-proof their business. At Sheda we help traditional manufacturing and product businesses transform their operations through digitalisation, Industry 4.0, IoT and human-centred design techniques. For manufacturers to take advantage of Industry 4.0, we believe you have to take a long term strategic view and focus efforts on R&D, product/ service design, offer new business and customer service delivery models. By discovering a clear value proposition through R&D and delivering your value proposition through marketing, sales and customer service, you provide more value for customers and generate a robust and defensible service offering for your business.

WOMEN IN TECH

R ecently, I was given the opportunity to engage in a cause that I feel overwhelmingly passionate about – using my skills and energy to support Women in Technology WA. WiTWA is a not-for-profit organisation that is bringing women together in a positive environment, seeking to drive change and pave the way to make a career in STEM part of the broader conversation, and hopefully a prominent choice, for the women of tomorrow.

We live in an extraordinary time. A time of exponential technological change, where glass ceilings are no longer insurmountable barriers, and where the possibilities for women – especially women in STEM – are unchartered. Yet, if we focus solely on the women in STEM, we have a long way to go. You may be aware that in Australia only 16% of STEM graduates are women – and only 27% of the total STEM workforce is female. While these figures may seem disheartening, they present great opportunity for growth and disruption. Inspiring the next generation of women to leap boldly into this ever-changing landscape – we need opportunities for women to bring, and continue to bring, their unique upbringings, their skills and their personalities to the technology community. And it is organisations like WiTWA that are seeking to generate this change.

WiTWA, the champion for diversity and equality for women in tech, creates a magnificent forum where we can seek to change the status quo together. Through education, support and ‘women in tech’ initiatives – initiatives just like WiTWA – I believe that we can generate the positive change that is needed for the future. I am incredibly excited to be involved with the very talented and welcoming team – a team of like- minded passionate professionals, working together for a common cause. Watch this space!

EIKE ZELLER Head of IoT Product Development at Sheda

REBECCA HEMBLING Head of Business Development and Marketing

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RegTech startup Checkbox is a multi-award winning platform that is transforming regulation into software – digitalising complex regulations into automated cloud software without developer coding. But founder Evan Wong started his entrepreneurial career long before he, and his cofounders, created Checkbox. Evan recently took some time out of his busy schedule to chat to Wrays’ CEO Rob Pierce, to discuss the evolution of his startup on our podcast Pioneer. Here is a little snippet of their conversation below. Evan Wong Founder of RegTech startup Checkbox

Rob: You founded your first company Hero Education at 17 years of age. Were you always entrepreneurial growing up? Evan: Funnily enough, no. I never thought of myself as an entrepreneur and I never thought I would become an entrepreneur. I think I had the DNA embedded in me though, because at a very early age I was always thinking about how to leverage processes and scale what I was doing. At that time, I was providing tuition services to a group of people through Hero Education. But as that kind of grew, I thought how do I hire people? How do I implement processes to scale that? And I built a business organically – by accident. Rob: So, you were providing tuition services on your own for the students? Evan: That is right. It was never a plan to turn it into a business. It was never a plan for me to become an entrepreneur. However, I think it is in my nature to build things that are bigger than myself. Rob: Innate is a word I often hear when we do these podcasts. People do not set out to become something, it is within them. Could you please share a little bit more about your journey from student into business owner? Evan: I did not really move from student to business owner – I was both at the same time, which was tough. As a full-time university student, I studied law and business. I also juggled a co-create club and a martial arts demonstration performance team alongside my studies and the Hero Education tuition services I created. It was challenging but I learned very quickly is that you learn a lot by doing. At that point in my life, I wanted to expose myself to as many different things that I cared about and was passionate about. Rob: Did you do it consciously with an ultimate goal in mind – or was it more innate? Evan: It was never about the end goal for me. It was very much learning. I am a big believer in becoming the best version of yourself. People often ask me about Checkbox and where I fit in. When do I plan to exit the business? And the answer is – I honestly do not know. I am on this journey and I will exit when it makes sense to exit. At the moment, however, I am just enjoying the journey.

PIONEER – extract of interview with Checkbox founder, Evan Wong

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Rob: You’re having too much fun? Evan: I am having too much fun! I am learning way too much, I am meeting incredible people, and I get to do great podcasts like this, so I can’t complain. Rob: Checkbox is young. It was founded only a couple of years ago in 2016. What are some of the challenges that you have had to overcome? Evan: The thing about startups is that, often in the media and on the front face of it, you see the tip of the roller coaster – the extreme tip – but you do not see any of the dips. And there are a whole bunch of dips that happen behind the scenes. We have shared a tremendous amount of dips in our business. One of the biggest challenges, especially at the beginning, was building credibility. I am quite young to be playing in enterprise, so I frequently need to establish credibility and respect before senior management even considers to what I have to offer. That has been a very big challenge. Rob: Checkbox has been widely recognised in Australia and globally with several awards. Most recently you have been awarded the Forbes 30 under 30. What do you most attribute to your company’s success thus far? Evan: It is a combination of many things. There is no silver bullet. One of the factors is sheer hard work – and not just at the founder level. I believe it is being able to motivate your team in a way that is intrinsic. It is not about paying them the most, it is about ensuring the team believes in the mission of the company so that everyone acts and works like a founder in our business. So it is sheer hard work – and there also needs to be a lot around understanding the customer. I think that it is important for any business, no matter whether you are profit, not-for-profit or whatever sector you are in, at the end of the day your customers are your lifeblood. They are the ones who give you the real feedback for your product or service. And they are the ones that keep the business running through revenue. So it is super important – no matter what we do, whether it is client-facing work or internal operations – that we always keep the customer in mind.

Rob: Is there a single piece of key advice that you would like to give to any aspiring entrepreneurs? Evan: Yes definitely, I have plenty. But if I were to pick one, it would be that the biggest common pitfall is people being too protective of their ideas – and not being open enough about it. If you have an idea, chances are it is a bad idea. All right?! And when I started Checkbox, it was a terrible idea. It took a lot of iterations, a lot of pivots if we use a startup jargon, to get to where Checkbox is today. So when people ask me, how did you come up with the idea? I say – I didn’t! This was not the idea I came up with, I came up with some other idea that was not as good. Rob: It evolved. Evan: It has evolved. If you think that you start off with the right idea in the beginning, it is probably not right. And if you keep it to yourself you end up building a business, or you end building something, that is not a business. It will stay forever as an idea. You really need to speak to customers, speak with colleagues, friends et cetera, and really bounce and refine that idea. Do not keep it in a black box. Rob: You need to have an open mind. Evan: Have an open mind and share the idea. Because at the end of the day, everyone is too busy with their own stuff to copy you, so to speak. And really it is down to execution. Any idea is copy-able, even under the law you cannot protect an idea. It is the execution. It is all in the execution.

PIONEER LIVE – THE DISRUPTER DISCUSSION SERIES

Showcas i ng the techno l ogy l eaders of tomor row

Wrays is bringing its innovation podcast series, Pioneer, to a live audience.

Hear from a range of Australian innovators as they share with Wrays’ CEO, Rob Pierce, the insights gained from their journey so far. Together we will explore the path of trailblazing disruptors from ideation to commercialisation. We will delve into what makes these innovations so unique and how this technology is impacting industries of the future. Featuring four key technology areas – AI, robotics, 3D-printing and AR/VR - Wrays is giving you the opportunity to hear from founding innovators, pioneers who are revolutionising industry, and leading disruptors across emerging technology trends.

To listen to the full conversation, please visit www. wrays.com.au/insights/pioneer-podcast-series/

Each chat will be followed by a Q&A and networking drinks.

Stay tuned for dates – this exciting discussion series is coming to a city near you!

#wraysfor innovators #pioneer l i ve

wrays.com.au

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The IP Perspective with Chris Juhasz

‘ What is real? How do you define ‘real ’? If you’re talking about what you can feel , what you can smell , what you can taste, and see, then ‘real ’ is simply electrical signals interpreted by your brain ’

Morpheus, The Matrix

It’s all there! These patent applications provide valuable insight and information, beyond what is available in the media articles, as to the extent and progress of the research that has been made regarding the technology, its likely future direction, and potential “roadblocks” that may be being set up to prevent others from following a similar path. Rather than just being a fun exercise for an interested patent attorney to do, such patent searching can be used to form a view of the IP landscape of the technology, and used by others operating in the same space, considering entering it, or investing in it, in making commercial decisions. From the media coverage, and the patent protection that is being sought for this technology, it appears that it is very much “real”. Being upgraded to more efficiently communicate with our devices is something that we can all look forward to enjoying soon. Assuming that we are not already of course!

Searching by Wrays revealed that the University of California is pursuing patent protection for several aspects of this technology, mentioned in the media articles, including: • an implantable device for sensing and reporting physiological conditions in a subject • an implantable device for sensing electrophysiological voltage signals in tissue such as muscular tissue • a method for implanting implantable device into, for example, a rodent brain • a method for making fabricated micro-needle used during insertion into biological tissue of interest • a method for estimating stimulation artefact signal on recording electrode at selected time-point.

Chris Juhasz is a Principal based in our Perth office. Chris specialises in patents across electrical and electronic engineering, computer technology, software, computer implemented inventions, mobile application technologies and business methods.

E ver since it premiered, The Matrix film has been prompting movie-goers to question whether humanity is indeed, unknowingly trapped inside a simulated, virtual reality (to distract us from, for example, our bodies being used as batteries). Of course, such a question has been on at least some minds for centuries. In this regard, fellow students of philosophy, and particularly those familiar with the works of Descartes and Harman, will have no doubt heard of the brain in a vat or jar scenario. In such a scenario, a person’s brain is removed from their body, suspended in a vat of life- sustaining liquid, and its neurons connected to a computer which provides it with electrical impulses identical to those the brain normally received.

embedded in a brain by a machine, and allowing for high transfer of data directly to and from the brain. The goal of the system is to allow humans to more quickly communicate with devices directly from their brains. When articles describing technology such as this are circulating, it is often fun (for a patent attorney, at least) to do some searching of the various patent databases that are available to see to what extent any patent applications for the technology are actually being filed, and patents granted, or whether it is still closer to a Keanu Reeves blockbuster movie than a body upgrade you can purchase when having your laser eye surgery (I mean, if you are going the doctor’s anyway, why not?).

The computer would then be simulating reality, including generating appropriate responses to the brain’s own output, and the “disembodied” brain would continue to have perfectly normal conscious experiences, such as those of a person with an embodied brain, without these being related to objects or events in the real world (thanks Wikipedia!). If recent media articles are to be believed, the above scenario is tantalisingly (or should that be horrifyingly) close to moving from a seventeenth century thought experiment to a reality, due to the work of Elon Musk and his secretive company, Neuralink. Media has reported that Neuralink has been collaborating with others (including the University of California) to develop brain-machine interfaces, consisting of flexible threads, thinner than a human hair, that can be automatically

CHRIS JUHASZ Principal

‘Just as you were beginning to think that you weren’t trapped in The Matrix …’

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Many of these rights are registrable, and so publicly accessibly IP registries all around the world can tell you all sorts of interesting things about the monopolies (or exclusive fields) that these IP rights owners hold. Since straying into someone else’s exclusive field can lead to IP infringement, the first use for trawling the public IP registries is to help you understand whether your proposed new product or service may be infringing someone else’s IP rights. Another way you can leverage publicly available information is for competitive gain. For example, doing a quick search for Apple’s latest patent filings can tell you what they’re working on. Conducting searches of competitor’s filing helps you understand where their products may be heading before they even hit the market, which could give you the heads-up you need to pivot and save some invaluable resources (read: time and money!). Flicking through the patent register can also tell you what’s been done before. Generally speaking, under patent law, if it’s been done before anywhere else in the world (whether found in a patent or in a journal article), it may be difficult to obtain patent protection. The lesson here is that freely available information can be used as a powerful source of intelligence to inform your product or service development, refine your go-to- market strategy and stay ahead of the competition.

Own what you pay for Did you know that, generally speaking in Australia, if you pay a contractor to create a design or code a piece of software for you, the first owner of the IP in that creation is the contractor and not the person who paid for it? This default legal position takes many by surprise. The solution is quite simple: get ownership of IP confirmed in writing. If you need to own that particular piece of IP make sure you have a written agreement clearly stating that you own the intellectual property in what has been created. This is called an assignment. For a software app it might be the source code, the logo, icons, graphics, text and the even the wireframe. For a new device, it might be engineering drawings and even the engineer’s own ‘inventive contribution’ towards the device – this is especially important if your idea is not fully formed and you are outsourcing some of the ‘inventing’ to your contractor. The other thing to remember is that you don’t need to own it all – sometimes you just need sufficient permission to use the IP or parts of it. This is called a licence, and merits a separate article of its own! Be aware of who else is out there IP is literally all around us. The Apple iPhone consists of hundreds of different IP rights: patents for inventive aspects of its functionality, designs protecting how it looks, trade marks protecting the brand and copyright protecting the software code.

In the end Adopting an IP conscious approach whilst continuously refining your idea is a smart way of going about pursuing your startup. The tips we set out can be easily integrated into your startup journey by simply stopping at various touchpoints to ask three simple questions:

THREE IP TIPS TO WRITE INTO THE OPENING ACT OF YOUR START-UP JOURNEY

1 2 3

Does this need to be kept confidential?

Do I own it?

As a start-up, you’ve probably got a lot on your to-do list, from completing your MVP to refining your business model and planning your strategy. So where does intellectual property fit in to all of this? Do I have time? Do I have the budget? And why should I make IP a priority over all the other important stuff I have to do? These next three tips are some of the most common pieces of advice we routinely give to our start-up clients each day. If followed, they can save you and your business from being distracted, giving you more invaluable time to focus on the things that are important and generate real value.

These two things can happen if you don’t ensure your discussions are treated and kept confidential. So always consider entering into an NDA with anyone with whom you will be discussing your idea. Signing a formal document like an NDA also sets the tone of the relationship. It lets the recipient know that you consider your confidential information to be valuable and that it should be treated differently to other information. People always ask me, what’s the value of an NDA? Is it worth the paper it’s printed on? In the case of a dispute about confidential information, it is almost always better to have it in writing. It gives the recipient party a lot less wiggle room if your NDA sets out clear expectations for how confidential information will be treated and managed and precisely defines what your “confidential information” actually is.

Keeping it confidential One of the very first things you want to do with your new idea is to shout it to the world! After all, you’re proud of it, right? And you know deep down inside that a “common sense” check with your friend, family member or work colleague will give you a healthy dose of reality you need. Then, you need to discuss your idea with a developer be it an engineering company, or software development company. Now enter from stage left the Confidentiality Agreement (or Non-Disclosure Agreement as it’s also called). The reasons you want your discussions about your idea to be treated confidentially are many fold, but these two are the most important: 1. You don’t want someone else to run off into the sunset with your idea 2. You don’t want to inadvertently destroy your ability to get a patent

What are others doing?

Armed with these three simple questions, you are well on your way to protecting your IP proactively, which will automatically give you a competitive edge over those that don’t.

ADRIAN HUBER Special Counsel

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and priority claims of a corresponding EU application. So, applicants will be faced with the cost of re-filing an EU application under the UK application fee structure if corresponding protection in the UK is required. What about patents? As we reported in Vol. 6 of The Gatherer, European patents are granted under the European Patent Convention (EPC), which is not an EU treaty and has numerous member states that are not EU members. As such, Brexit will have no impact on European patents and the UK will remain a member of the EPC post-Brexit. The international patent application (PCT) system administered by WIPO and UK national patents will also be unaffected by Brexit. There may, however, be repercussions for the UK’s intended participation in the proposed new Unitary Patent and Unified Patent Court (UPC) in Europe following Brexit. (See our article in Vol. 6 of The Gatherer). The UK ratified the UPC Agreement in April 2018 indicating its desire to be part of these new arrangements despite Brexit. Indeed, London was intended to host a branch of the Central Division of the Unified Patent Court responsible for chemicals, pharmaceuticals and life sciences. But Brexit, and especially a ‘No Deal’ Brexit, places a question mark over this. As the UPC Agreement has been delayed by a complaint to the German Constitutional Court and it is still not clear when (some say ‘if’) it will come into effect, such repercussions for the UK are still hypothetical at this stage.

The UK Intellectual Property Office has advised that, should a ‘No Deal’ Brexit occur, the UK Government will ensure that the property rights in all existing EUTMs and RCDs will continue to be protected and to be enforceable in the UK by providing an equivalent trade mark or design registration in the UK. Right holders with an existing EUTM or RCD will have a new UK equivalent right granted (at no cost to the right holder) that will come into force at the time of the UK’s exit from the EU. The trade mark or design will then be treated as if it had been applied for and registered under UK law. This means that these UK trade marks and designs: • will be subject to renewal in the UK • can form the basis for proceedings before the UK Courts and the UK Intellectual Property Office’s Tribunal, and can be assigned and licensed independently from the EU right. The same provisions will apply for international registrations designating the EU filed with the World Intellectual Property Organisation (WIPO) under the ‘Madrid’ and ‘Hague’ systems. Importantly, however, the automatic issuance of an equivalent UK registration will not apply to pending applications for EUTMs or RCDs. Applicants for EUTMs and/or RCDs will need to re-file their applications with the UK Intellectual Property Office if they wish to secure that same protection in the UK. To facilitate this, a period of 9 months from the exit day will be provided in which the UK will recognise the filing dates •

Watch this space

The political situation in the UK remains fluid and the eventual outcomes associated with Brexit are yet to unfold. Whatever happens, we shall keep you informed about how the developments there may affect your intellectual property.

BREXIT UPDATE

assured his constituents will be the case… ‘come what may’), the UK will then naturally cease to be a member of the EU. This raises the question: What happens to existing rights from EUTMs and RCDs that are currently enforceable in the UK as an EU member state? This is not itself a new question. In anticipation of the UK leaving the European Union, one of the matters set out in the draft Withdrawal Agreement negotiated over two years between the UK and the EU was a post-Brexit transition period during which EU law would continue to apply in the UK. This transition period would provide the UK time in which arrangements for an orderly transition could be made, including

time to ensure the continuity of intellectual property rights. But, as we know, the situation in the UK has been anything but orderly. What about a ‘No Deal’ Brexit? The question has now gained more interest and urgency following the UK House of Commons’ decisive rejection of the draft Withdrawal Agreement, and the failure of a majority in the House of Commons to agree on a way forward for the country. In the absence of a Withdrawal Agreement with the EU, the question is then: What happens to the rights from existing EUTMs and RCDs in the UK in the event of a ‘No Deal’ Brexit?

What happens to EU trade mark and design registrations in the UK with Brexit? The European Union, which currently numbers 28 member states, including the United Kingdom, provides a system of registered EU Trade Marks and Registered Community Designs (RCDs) via the EU Intellectual Property Office in Alicante, Spain. The EUTMs and RCDs are single registrations that have effect and are enforceable in all EU member states. If and when the UK does actually leave the EU, however, as is currently planned for 31 October 2019 (and which the new British Prime Minister, Boris Johnson, has

PHILIP GEHRIG Principal

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