Overview

Battery Energy Storage Systems (BESS) are reshaping Australia’s energy landscape by enabling the integration of renewable energy across key industries including agriculture, manufacturing, data infrastructure and electric vehicles.

For more background about BESS, see our related articles. 

Recent patent disputes over BESS technology in Europe have highlighted the need for manufacturers of BESS to safeguard their innovations through intellectual property (IP) protection, and for project stakeholders to ensure that their contractual arrangements contain robust IP ownership and licensing provisions.

Key takeaways

In this article, we explore some key IP strategies designed to safeguard and strengthen long-term value in BESS technologies, and to mitigate the risks of IP infringement, including:

• Conducting freedom to operate searches and undertaking IP due diligence to ensure IP rights are not infringed
• Securing exclusive IP rights by way of design, patent and trade mark registrations
• Ensuring copyright authorship and ownership claims can be established
• Maintaining a competitive edge by keeping confidential information, trade secrets and proprietary ‘know how’ secure
• Clearly delineating ownership and licensing rights for background and project IP developed
• Obtaining IP warranties from OEMs
• Managing AI use risks associated with IP ownership, inventorship and the provenance and use of data, and
• Reviewing environmental claims and marketing materials that may give rise to greenwashing risks and regulatory action.

Freedom to operate clearance searches

Before investing in the development of BESS, it is critical to conduct “freedom to operate” searches to assess:

1. whether any third party IP rights may be infringed; and
2. whether design, trade mark or patent registrations can be obtained without a third party challenge.

Thorough IP due diligence should also be undertaken by project developers to minimise the risk that components supplied for installation into a BESS project do not infringe the IP rights of a third party, and that customers and end-users are not inadvertently exposed to infringement claims. This may involve reviewing OEM licensing arrangements, checking the patent landscape, verifying ownership and entitlement to use technology, and scrutinising the supply chain.

IP protection

Innovators can safeguard and commercialise their investment in the development of unique and distinctive BESS components, products, processes and brands by securing IP protection, including by way of:

• Design registration to protect the unique shape and visual appearance of a product. For example, a registered design can protect the distinctive shape of a BESS unit.
• Trade mark registration to protect brands, logos and distinctive slogans. There are currently 44 registered trade marks on the Australian Trade Mark Register referencing “battery energy storage” or “BESS”.
• Patent registration to protect new, inventive and useful devices, methods, processes and substances. Several patents have already been registered for BESS technologies in Australia and recent data from the 2025 IP Australia Report highlights a significant rise in patent filings for electric vehicles which incorporate BESS.¹
  • Green patent fast-tracking – Patents grant exclusive rights to make, use, sell and license an invention for up to 20 years. A standard patent registration takes between 12-18 months, however, to promote sustainable innovations, ‘green technology’ applications can be expedited, which reduces the examination timeframe to around eight weeks.
  • PCT International application – Australian patent registrations can be used as a basis for filing applications in other countries such as in the well-established BESS market in China and the USA²  through the Patent Cooperation Treaty.
• Copyright – In addition to registrable IP rights, copyright can also support commercialisation by protecting original creative assets. While not registrable in Australia, copyright automatically protects original materials such as technical instructions, data compilations, computer software, visual system/layout designs and marketing content.
  • To maximise the value of these assets, manufacturers should maintain records of authorship and ownership and dated drafts/sketches demonstrating the progression of development.
  • Written and signed copyright assignments must be obtained from third-party consultants (such as software developers, design engineers, and prototype manufacturers) to ensure that copyright ownership is vested in the relevant entity.
  • IP clauses in employment contracts should be reviewed to ensure that the copyright in any original material developed by an employee in the course of their role is assigned to the relevant entity.

Securing IP rights ensures that they can be effectively licensed or transferred as part of broader commercial arrangements.

BESS contracts

IP provisions in a range of contracts will be relevant across various stages of a BESS project installation. Examples include the following:

• NDAs to protect early-stage concepts, feasibility studies and proprietary modelling tools
• IP ownership clauses in consultancy agreements with engineers and system designers
• IP warranty, indemnity and licensing provisions in supply agreements relating to procurement of components, software and equipment, and
• obligations as to how existing and newly developed project IP and proprietary trade secrets in algorithms are to be owned and used in construction, electrical installation, operation and maintenance arrangements.

At each of these contractual touchpoints, it is important to address these intellectual property considerations:

• any background IP which each party brings to the project;
• whether any licences will be needed between the parties;
• who will own IP which is developed over the course of the project and whether that created IP will be assigned or licensed to certain parties; and
• whether any warranties will be needed from suppliers confirming their ownership of IP in the technology supplied, and assuring that the installation and use of that technology does not infringe any third party IP rights.

Without clearly defined IP provisions, various stakeholders in a BESS project can potentially face disputes over ownership and exposure to infringement claims, which can significantly disrupt project delivery.

Protection of confidential information

Confidential information such as technical specifications, manufacturing/supplier arrangements, trade secrets, operational knowledge and commercially sensitive information in the nature of production costs, business strategies, customer data, financial forecasts, pricing and competitor/market analyses, is extremely valuable to a business.

Confidential information in a BESS can be protected by:

1. Robust confidentiality clauses in employee and manufacturer/supplier contracts that clearly define what types of information are protected, how this information must be treated and the consequences of breaching confidentiality.
2. IP ownership/rights/assignment clauses in supplier, distributor, manufacturer and purchaser agreements that clearly set out who owns each type of IP, what rights each party has in respect of the IP and how, when and if those IP rights can be transferred to another party.
3. Non-disclosure agreements that bind employees, manufacturers/suppliers and distributors against unauthorised disclosure of confidential information to third parties.
4. Implementing internal protocols for managing access to confidential information, including through employee training and secure storage of digital environments, access restriction and information sharing protocols.

Artificial intelligence and IP challenges

Artificial Intelligence (AI) can be used with BESS to optimise performance, monitor technical operations and manage resources. However, it is best practice to recognise these key AI risks:

1. Difficulty determining ownership over AI generated outputs used in the development of a BESS because Australian copyright and patent laws only recognises human authors and AI generated materials may not be eligible for IP protection.
2. Risk of IP contamination arising from outputs generated by third party open source AI vendors, where third party IP or proprietary information submitted by other users may be inadvertently reproduced in outputs leading to the infringement of third party IP.
3. Lack of accountability and explainability in AI generated outputs and programming where the algorithmic decision-making procedures are opaque, making it difficult to trace, explain and reproduce results and decisions made by AI.

If using AI, it is important to keep clear records of the AI inputs used in the developmental stages of a BESS. Manufacturers should also ensure that employees are adequately trained on AI use including how to protect confidential information.

Greenwashing

Greenwashing is the practice of making misleading environmental claims about a product or service and is a key enforcement priority in 2025 for the Australian Competition and Consumer Commission (ACCC) and other regulatory bodies.³ To minimise the risk of regulatory scrutiny or enforcement action regarding “green” practices, consider the following guidelines:

1. Plan for end-of-life management of BESS project operations, including the safe disposal of batteries and other materials which can become an environmental hazard. Developers have previously been required to provide decommissioning plans as a condition of approval for BESS projects.
2. Exercise caution when making environmental claims about the sustainability of your BESS product including the impact of manufacturing processes or operation of BESS products. Any claims to being “green” should be substantiated with evidence to avoid scrutiny from regulators, competitors and consumers.

What’s next?

Understanding the current IP landscape and ensuring that BESS project contracts contain robust IP and confidentiality clauses are vital steps towards protecting the technologies, data and know-how in the ever evolving BESS space.

If you would like assistance in protecting, commercialising, marketing and enforcing your BESS IP, please contact a member of our Intellectual Property team at Dentons Australia.

1. Australian IP Report 2025, 5
2. IDTechEx, Countries With Soon-to-Boom Li-ion BESS Markets
3. ACCC, Compliance and enforcement priorities