By obtaining rights, the inventor or author has an enforceable right to deal exclusively with the idea and have ownership. There are organisations and patent and trademark attorneys that can help you safeguard your idea.
Step one: Register the business
Set up a business entity by registering the business as a Close Corporation or a Private Company and get all of the necessary licenses and tax registrations that are required by the South African Revenue Services (SARS).
Step two: Trademark, Patent and Copyright
It is important to know the difference between a trademark, patent and copyright in order to follow the correct procedures to safeguard the idea.
What is aTrademark
A trademark is a type of intellectual property, and is typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements. The owner of a registered trademark can take legal action for trademark infringement to prevent unauthorised use of that trademark.
What is a Patent?
A patent is a set of exclusive rights granted by the government to an inventor for a limited period in exchange for a public disclosure of an invention.
Copyright is the legal protection against copying and the specific rights allowing copying given to original works that are printed or photographically or electronically stored words, music, visual arts, and performing arts. The purpose of copyright is not just to protect the rights, but also to establish the rules under which copies or portions may be made to make a work more widely available.
How to register a trademark
Trademark registrations provide wide-ranging protection and remedies against infringement.
How to register a patent
Once you have established that the patent hasn’t been registered you can file a provisional patent application through Cipro (www.cipro.gov.za). The reason that you register a provisional patent application is to provide time to evaluate the invention publically.
This means that if a similar or the same patent is registered, but was missed during the search, there would be a 12-month period for this problem to show up. Applications for Provisional Patent Application costs approximately R60.Once the provisional patent application has expired, a patent application must be completed.
Complete patents must be signed and filed by a patent attorney. The complete patent filing in South Africa can cost between R7 000 and R10 000 or more, including official fees. The renewal fee, payable annually from the 3rd year onwards, is on a sliding scale from R130 to R206 for official fees and R725 for a patent attorney’s fee.
To register a patent you have to conduct a search
Before you can register a patent you have to conduct a patent search. In South Africa, a patent search can only be done at Cipro in Pretoria. Researchers and inventors can do searches at Cipro’s Paper Based Disclosure Centre. South African patents are not available online. Most patent attorneys in South Africa use USAPTO to conduct their searches. This site offers a good indication of whether or not an invention has been patented because the ‘novelty requirement’ is truly tested in such a large market place. Most patent applications will be granted by Cipro because it does not check to establish that an invention is unique. That is why a Provisional Application for Patent is so important.
Other search options
There is an Electronic Patent Journal (EPJ) where South African patent information is available. It is currently being developed for availability via the Internet, but at present can only be accessed through the offices of the patent attorneys, Hahn & Hahn and Spoor & Fisher.
The database is available on CD or hard disk at a cost of R55 000 for the basic set and R12 370 per annum for the update. There is also an option for ‘pay-as-you-use’ searches. An hourly fee is charged.
International Patent Searches
Patent searches in other industrialised countries are available on-line in specialist databases.
Seek legal advice
It is best to see legal advice o help you register a trademark or patent as these are complex procedures.
Step three: Pitching your idea without it being stolen
A Non-disclosure Agreement is a legal contract that allows a company to share its intellectual property (IP) with others, whose input it needs, without unduly jeopardising that information. A non-disclosure agreement or confidentiality agreement is used when you have an unpatented idea that you need to show to a third party.
Non-disclosure agreements are the cheapest form of protection for an invention you can use, but they are not a substitute for a patent application.
The purpose of a NDA
Entrepreneurs are often in a tricky situation when presenting their business plans and intellectual property (IP) to potential investors.
The purpose of a confidentiality agreement is it to protect the idea so the entrepreneur can patent it later so the agreement should be catered towards that. Typical things to include in the confidentiality agreement would be the duration – in other words when it expires – also spell out what a breach of the agreement would be and then what the consequences are and don’t forget to define the parties carefully.
Confidentiality agreements, or non-disclosure documents as they are also known, protect sensitive technical or commercial information from disclosure to others.
If after a non-disclosure agreement has been signed, the information is revealed to another individual or company, the injured party has cause to claim a breach of contract.
The type of information that can be included is virtually unlimited – data, know-how, prototypes, engineering drawings, computer software, test results, tools, systems, and specifications.