For the last two decades, startups have tried to succeed by “moving fast and breaking things”. Startups often viewed the pursuit of intellectual property (IP) protection as an unnecessary distraction when speed and the ability to outmanoeuvre the competition seemed sufficient to succeed.
However, technological advancements and the speed of international industrial capacity have made this playbook increasingly difficult to execute. Australian startups face additional barriers to moving fast and breaking things. The size of Australia’s domestic market and logistical distance to major international players are large barriers for your startup to overcome before you can establish economic moats necessary for a successful business.
Startups are Losing Their Adaptability Advantage
In the fashion industry, startups used to succeed by building a distinct design language. In software, startups used to succeed by smoothing out friction or building a new experience. In hardware engineering, startups used to rely on agile iteration cycles to stay months ahead of slower moving incumbents.
However, recent geopolitical and technological developments are rapidly nullifying these advantages.
For the fashion and hardware industries, the rise of China’s flexible industrial base and fast fashion has made it possible for successful products to be copied and replicated within weeks or even days. For software, the current generation of LLM based coding solutions has made it possible to reverse engineer clever solutions for a fraction of the cost and time frame of a traditional development team.
With the traditional startup advantages fading away, Australian startups should consider using IP to protect their innovations and creativity.
Patents Protect your Technical Advantages
In exchange for publicly disclosing your inventive concept, patents can provide an exclusive monopoly over an innovation. After filing a patent application, startups have much more flexibility in discussing their products with investors or testing such products in a public space.
For a startup, having a patent application protecting their important innovations helps to nullify the danger of a global market where LLMs can swiftly copy software innovations and advanced industrial capacity can replicate hardware innovations.
For startups interested in patents, my colleague Otto Saha’s article on when to engage with a patent attorney is a helpful starting point for learning more about the patent process.
Trade Marks Secure your Brand
By the time a new startup will have naturally established a reputation, their branding is likely to have been copied or recreated by third parties. Before a startup has built an organic reputation, there are also fewer options for a startup to stop third parties from copying or recreating their branding.
By filing trade marks to protect a startup’s branding, a startup has the time to prevent third parties from using their branding while their natural reputation is building.
For startups interested in trade marks, MBIP Principal Geraldine Rimmer’s article exploring a tech company Space X’s trade mark strategy and the lessons Australian businesses can learn may be of interest .
Designs Defend your Product’s Aesthetics
In exchange for publicly disclosing your product’s unique design, designs can provide an exclusive monopoly over the visual appearance, shape or pattern of a tangible object. Similarly to filing a patent application, startups have much more flexibility in demonstrating the visuals of their products after filing a design.
Having a design protecting important products it helps to nullify the dangers that a global market of fast fashion and advanced industrial capacity that can replicate hardware designs poses to a startup
For startups interested in designs, this article published by MBIP provides some more in depth details about how design protection works in Australia.
Investors Value IP Security
Investors in Australia have always been more cautious than their international counterparts and this caution has been exaggerated in recent years.
Registered IP can help in mitigating investor caution, as these legal protections reduce the risk of a startup’s unique advantages from being copied.
By prioritising IP from day one, Australian founders show investors that you have a defensible, scalable right to compete in a global market, something that speed can no longer guarantee.
Further Advice
If you have further queries about the drafting and prosecution of patents, infringement proceedings, or recent patent law developments in Australia, please contact MBIP via email on mail@mbip.com.au or via our online form. Our experienced team of attorneys would be glad to assist.
