What is intellectual property?
Intellectual Property (“IP”) covers a range of creative endeavours and inventions, and includes trademarks, copyright, patents and designs.
It is essential to make sure one’s IP is adequately protected and defendable.
A trademark distinguishes your goods or services from competitor products [Coca Cola; Kaizer Chiefs; Blue Bulls, Colgate], and is also used to protect domain and trading names.
Copyright is a form of intellectual property which does not require formal registration to be enforceable against third parties and includes literary works, musical works, artistic works, sound recordings, broadcasts and computer programs.
A patent covers new inventions. It could include a new device or article, equipment or apparatus, a process for producing or manufacturing a product or chemical substances, compounds and formulations. A patent is the right to exclude others from making, using or selling the invention, in a defined geography, in the claim for a period of 20 years. An invention is patentable if it is novel, non-obvious and useful.
A design registration protects the physical appearance of an article as opposed to a patent which protects the underlying principle of how the article functions.
Intellectual Property Assets: Intellectual property assets, is a broader definition, that registered IP as listed above. Intellectual property assets are very valuable to a business and need to be created, secured, protected and exploited to deliver value.
It is imperative that IP be protected before it becomes part of the public domain, as “loose lips sink ships”. An invention should be kept secret until a patent application has been filed, and if it becomes necessary to disclose details to third parties before the application has been filed, a written undertaking of secrecy/ non-disclosure should be signed.
If the invention is disclosed to third parties before the above steps are taken, it may destroy the novelty of the patent and it will no longer be possible to protect your invention.
Common IP Mistakes:
- Contamination of IP at origin: Just because you originated the idea, does not necessarily mean that you own it. This is especially true if you are employed by another organisation as any IP may belong to them, in terms of your contract; or if you use company resources e.g. computer etc. to develop your IP.
- Not securing IP rights from contracting entities: This is especially important when you are using third parties to assist you with R&D surrounding your IP. It is important to draw up contracts and ensure full IP assignments to prevent disputed over IP ownership.
- Agreeing to joint ownership of IP without an agreement: If you agree to jointly own a piece of IP you need an agreement. This agreement should detail the percentage ownership, each parties rights to use and who will be responsible for maintaining and protecting the IP.
- Publicly disclosing IP before deciding & executing on an IP strategy: The unintentional disclosure of IP can affect its future protection. It is important to communicate to people what is confidential, identify IP and risk of disclosure, and sign NDA’s were appropriate.
- Relying on only one type of IP for protection: If possible more than one type of IP should be registered to protect your product and brand and an IP or copyright register should be maintained.
- Underestimating the cost of protecting IP & improper IP management: IP protection is expensive, needs to be budgeted for and annually reviewed. You should assign a staff member or founder to be responsible for IP identification, protection and management.