Poor, poor entrepreneurs. No sooner have they had the Best. Idea. Ever, then they start fretting that someone’s going to thieve it.
Other than never telling another living, breathing soul about your plans, there are several ways to protect your business model, invention or confidential information.
Remember: none of this information should be construed as legal advice. Always seek out a qualified professional in relation to your own circumstances.
1. Prevention is better than cure
The best way to stop someone from using your idea is to not tell them in the first place. However, inevitably there will be situations where you’ll need to disclose your plan, such as if you’re speaking to a venture capitalist, a website developer, a potential manufacturing partner or a patent attorney.
A patent attorney or any other legal advisor is bound by professional obligations that include confidentiality. For anyone else, it’s advisable they sign a confidentiality agreement first (discussed further below).
You may conclude that you’re better off keeping your idea a trade secret – just like the recipe for Coca-Cola. Whichever course of action you ultimately choose, take into account what you’re trying to achieve, your financial means, the resources available to you and the commercial viability of your idea.
A patent can protect a business method or new product — provided they meet certain requirements. An idea, such as the concept of online retail for example, is not patentable. However, if you devise a unique system for customers to purchase goods or services online, that’s patentable. An example is Amazon’s patent over the process and software for its ‘one click’ system for online purchasing.
If your invention is patentable you shouldn’t disclose it to others until you’ve lodged your application. Applying for a provisional patent is relatively inexpensive and provides protection for a 12 month period before a complete patent application needs to be filed. This is a good option for inventors who want to explore an invention’s commercial potential, but need funding to manufacture or market the product. Once the provisional patent is in place, the inventor can use the 12 month period for the necessary discussions without invalidating the patent.
3. Copyright and Trademarks
Copyright and trademarks can be used to protect elements of your business. Copyright can protect written, visual and audio materials such as software code, website layouts, manufacturing drawings and sound recordings. Trademarks can protect elements such as your brand name, product or service names, and company logo.
A registered trademark puts you in a much stronger position to take action against an infringer. In addition, simply being aware of your rights and how to protect them will assist you in dealings with other parties.
4. Confidentiality agreements
A confidentiality agreement is as straightforward as it sounds. A party signing it is agreeing to maintain the confidentiality over the information that you’re disclosing to them. Although you may find templates or clauses of confidentiality agreements on the internet, it’s best to get one from a reputable organisation or have one drafted by a lawyer to ensure that it adequately protects you.
If a party refuses to sign a confidentiality agreement or to keep your discussions and information confidential, you need to consider whether you really do want — or need — to disclose your information to them.
Devita Pathi is an intellectual property lawyer and trade mark attorney. She has over 7 years experience in the legal profession. She is the author of numerous articles including an award winning article on copyright and design laws. Devita has a particular interest in assisting small and start-up businesses to identify, protect and commercialise their intellectual property.