IP Australia Puts Focus on Innovation, Access, and Building Trust

Margaret Tregurtha (IP Australia, Australia)

Margaret Tregurtha joined IP Australia as Deputy Director General in 2020. She is responsible for policy and international work, economics and data, customer experience, and the agency’s corporate functions, which include human resources, IT, and finance.

Ms. Tregurtha previously worked as a legal professional in government, in areas including education, environment, climate change, energy, and industry policy. She has been involved in developing legislation across various areas and in helping to make legal processes efficient, effective, transparent, and accessible for users.

Notably, she was General Counsel of the Department of Industry, Science and Resources from 2012 to 2017 and General Counsel of the then Department of Environment and Energy from 2017 to 2019.

IP Australia is an independent entity that sits within the government’s Industry and Science portfolio. It is responsible for administering and registering patents, trademarks, designs, and plant breeder rights (PBR); registering patent and trademark attorneys; educating customers on the role of intellectual property (IP) in their business; and providing advice to the Australian government for improving the IP rights system domestically and internationally.

The Australian Patent Office (APO) was established in 1904 and took over the administration of trademark and design rights in 1933. In 1998, the APO was dismantled and replaced by IP Australia. Between January 1 and June 30, 2023, the Office processed 32,051 patent applications; 80,062 trademark applications; 8,336 design applications; and 339 PBR applications. IP Australia will soon publish its 2024 IP Report. Included will be an analysis of the economic impact of trademarks as well as data on clean energy patent filings.

Ms. Tregurtha spoke to the INTA Bulletin about IP Australia’s current projects and priorities, as well as emerging IP challenges.

How do you see the role of IP developing in innovation and business in the future?
IP is essentially about incentivizing innovation. That’s its core function and I think it will stay relevant. But what that looks like is an interesting question.

I think the system will need to adapt as the environment changes. If you look back at the nature of IP rights, they’ve been fairly static over the past 100 years or so, but we’re seeing some challenges around the edges now. I think the ways of doing business are having an impact and so are consumer preferences and the international marketplace, and of course technology.

So, we really have to look at how the system needs to adapt. From IP Australia’s perspective we must apply the law as it currently is, but we also need to look to the future and ask: what is it going to look like? Are there things at the edge of our area of responsibility that might have an impact on our areas of focus?

I would put artificial intelligence (AI) into that bucket as well as the notion of open source. What does that mean for how we deal with IP, and how does IP continue to deliver for communities and society?

When you speak to stakeholders, for example, there is a real issue with how IP deals with software. There are also questions in terms of Indigenous Knowledge and traditional cultural expressions. We will see whether the current suite of rights can adapt or whether there’s a need for something completely different.

It’s a global system, so it’s very important to think about and stay in touch with colleagues and see what’s happening internationally to be able to deal with these challenges.

How do you expect the relationship between IP offices and brand owners to develop in the future?
I think at its heart are expectations around customer service. That includes both people who are already our customers, who want responsive services and to be able to operate digitally across all kinds of channels, and people who are yet to be customers: we need to think about how we reach and educate them.

We spend a lot of time and effort on the value and importance of IP as a central part of a business strategy—including trying to talk to potential brand owners about the fast pace of things. And you need to think about this at the beginning. Otherwise, you risk, for example, disclosing your design; or, you register a domain name without thinking about a trademark, and then find that the trademark is not available.

We see brand owners looking to IP offices for that broad-based awareness and education. Of course, people will also access professional services, but we try to do the early education awareness to make sure people are engaging in the system.

A key group is SMEs [small and medium-sized enterprises], including startups, which is a real focus for us as they must make choices on a daily basis about what to spend money on. There are also underrepresented groups such as female entrepreneurs, Indigenous communities, and people who are just not aware of how the IP system works. Our role is to provide broad-brush education and outreach on the basics of IP so they know what questions to ask to make the right decisions.

The other thing to flag is to make sure we have easy-to-use digital channels. The days when people were content to write a letter and wait two weeks for a response are over and have been for some time. We need to ask: how do we deliver that integrated, seamless customer experience in a way that makes it easy for people?

With these changes, how can IP offices remain relevant and how do you see the role of IP Australia evolving?
I think it’s about making sure we understand the environment and what will impact the administration of IP rights. It might be that we look at an issue and think, this isn’t an issue for us but for another department or another legal area.

In that regard, we also work very closely with our colleagues in IP offices around the world. Despite all the differences, there’s a lot of similarity and it’s important to make sure we’re aligned.

One thing we’re interested in is e-commerce platforms and what they mean for brands. That’s something to keep an eye on, and a really interesting question on a theoretical level is the rise of private systems adjacent to public right systems and how they interact. For example, if a brand registry in a big e-commerce platform says, “you have to have a registered trademark in order to trade through this platform, or access certain benefits,” then that creates some interesting incentives for the trademark system and questions about what impact that has on our administration of the system.

AI is an area that we need to make sure we’re on top of. Another area that we’ve recently been working on is the industrial design system and making sure our Australian system is operating in a harmonious way internationally. We’ve recently introduced a grace period for designers who inadvertently disclose their designs before filing, which aligns with the practice of many other countries. Sometimes you need to make a shift to deal with a specific issue while staying within the broad envelope of the relevant international treaties.

What role can the IP system play in supporting Indigenous Knowledge?
The headline is: we have to do better. The IP system can do better in supporting the rights of Indigenous people and protecting Indigenous Knowledge. At the international level, we’re moving towards a diplomatic conference on protecting genetic resources—the Patent Disclosure Treaty—and that’s a real opportunity to enhance the efficacy, transparency, and quality of the system to prevent patents being granted for inventions that are not novel or inventive.

With regard to genetic resources, it’s quite a small step to provide that degree of transparency. It’s not creating any new rights or changing the way the patent system works, but it is providing a very important transparency mechanism. If we can do that, it would be a small but really important step forward, both on this issue and to show that the IP system can respond and adapt to different circumstances.

Domestically, we’re also looking at whether we need new rights with regard to the ability of our Aboriginal and Torres Strait Islander peoples to protect their knowledge and culture. That’s about providing control and allowing businesses with a legitimate interest to be able to economically benefit if they choose to. It’s important that the government works really closely with our Aboriginal and Torres Strait Islander peoples on developing the right response to these issues.

One issue we face is fake art: we see a lot of copies of Aboriginal and Torres Strait Islanders’ styles where the people doing it have no connection to or understanding of the work and it’s very hurtful and damaging. And of course, purchasers would prefer to have something that is authentic. There’s a feeling that copyright doesn’t do the job, so we need something that’s really designed to address this particular issue. Our Australian Government Office for the Arts is leading that work and we’re supporting them. It’s important to talk to communities about their experiences and what they’re looking for.

We have to ask: can the IP system respond better to some of these issues? We’ve been looking at our Trade Marks Act 1995 to see if it needs to be changed to provide better and easier ways to prevent misappropriation of language or imagery or other aspects of culture.

The theme for World IP Day 2024 is IP and the United Nation’s Sustainable Development Goals (SDGs). How can IP advance sustainability?
Enhancing access to underrepresented groups in the IP ecosystem is key, and that is something we’ve showcased in our 2023 IP report about IP rights–holding businesses, which are more productive, have higher revenue, and pay people more. In addition to Aboriginal and Torres Straits Islander peoples and female innovators, we need to reach into secondary schools to lift the overall awareness of IP.

On top of that, there are the really challenging problems such as climate change, health-related issues, and energy concerns where innovation is key—and IP is an incentivizer of innovation. Australia supports the WIPO Funds-in-Trust program, and we’ve just launched a fourth iteration of that, which is focused on the Indo-Pacific region and on climate change mitigation and clean energy. That program supports dealing with plastic waste and green technologies in Indonesia around treatment of and creation of value from palm oil effluent.

At IP Australia, we have accelerated patent examination in this space, but there is a question about what more could be done there. These issues are not only for the IP system but also about industry policy more generally.

Trademarks also have an important role in signaling to consumers, for example, from a certification mark perspective, which can be helpful. People want to know whether the product they’re buying is compliant with certain standards—for example, if a product is from a sustainable fishery or if a company is involved in a carbon offset scheme which is certified. But you also need to make sure that brands are not being used to mislead.

IP Australia has been at the forefront of developing new tools for users. What are your aims in doing this and what kinds of tools are you currently working on?
At a high level, what we’re doing is customer centric. We work really hard on our customer feedback loop and what it tells us about how we might need to change our online filing system or our website, for example. We have created a semantic search tool that makes it much easier for people to pick the right categories and classifications in the Madrid System, which can be hard to navigate. The goal there is to reduce irregularity notices received by trademark applicants when filing international applications.

We’ve also recently released a new Australian patent search and we have a tool called Trade Mark Checker. The goal of TM Checker is to provide people with a quick, free check to give a sense of whether the mark they want might be available—and they can use it as many times as they want. It also provides a good educational opportunity because the tool has lots of information about how the trademark system works and pitfalls to be aware of, so it helps those small business owners who might not yet have engaged professional services to help them progress through to filing an application. We’re looking at how we integrate that into our online services portal.

At IP Australia, we have a team called IPA Ventures and part of their remit is to take a step back and look at things that would be different to what we’re doing now. Innovation can occur in all aspects of the organization and a group within IPA Ventures came up with the idea of TM Checker, and then it was a matter of devoting resources to develop it. And we’re always interested in sharing knowledge and ideas with other offices.

IPA Ventures also did a piece of work on generative AI and what it might mean for the IP system, surfacing ideas which might need further development now or in the future.

On that point, what role do you think AI will play for IP offices and the services they offer?
There are lots of things we can explore. IP Australia has been working on tools using AI technologies, such as natural language processing and machine learning, since before I joined the agency. We’ve implemented tools into our patent auto-classifier, which is about streamlining workflows, and we’ve got examination tools as well as commercially available AI tools.

There’s a question about what capability they provide to us to be able to work in a more efficient and effective way, thinking about how we manage that while ensuring the trust of the public. And there’s also the broader impact on the IP system: in our research on generative AI, we did a thought experiment around designs and whether if you have thousands of designs for chairs that are automatically generated, do you ever have a novel chair again? Are we going to have issues with freedom to operate, or how we manage prior art?

Another concern is that we’ll get AI-written patent specifications that are thousands of claims long, and how would we manage that? We’re also already seeing litigation around the world on the issue of using Internet content to feed large language models and what that means for copyright infringement.

Taking a step back, IP is about incentivizing innovation, and we need to ask: where do the incentives need to sit in a different kind of technology landscape? It’s important to start looking at these issues now—both for IP offices and attorneys.

Deploying AI comes with a range of ethical considerations that all entities exploring AI are navigating. What lessons has IP Australia learned about the use of AI—and especially with issues relating to bias and trust?
The discussion is going on in Australia and in many jurisdictions about government use of AI and more broadly, in trade and commerce, about what is safe and responsible AI and what are the ethics principles that we need to adhere to.

The issues of explainability, transparency, and making sure you have good data governance are key. If we focus on those, it will put us in a good position to be able to maintain the trust of our stakeholders.

We also want to make sure we take a risk-based approach. We need to think about identifying the high-risk areas where you need processes and guardrails compared to areas which are low risk. We don’t want to get in the way of innovation with too much red tape. So, one challenge will be seeing what goes in which bucket.

Finally, what is your message on behalf of IP Australia to brand owners and Office users around the world?
At their heart, IP rights drive innovation and productivity and encourage the spread of new ideas, which is what we want to support. We’re committed to excellent customer service and putting the customer at the center of everything we do—and to adapting and evolving the system both from a customer perspective and from a policy perspective. If you can evolve and adapt, that’s important, especially for brands, which can last forever.

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest.

© 2024 International Trademark Association