Intellectual property can be categorized into four groups: copyrights (authorship for original works like music, books, software etc.), patents (for new discovery or invention in any science or other fields), trademarks (design or symbol) and trade secrets (formula, algorithms, device or any type of unique process). An IP has a great value in the success of an individual or an organization, and hence they should understand the various means to protect their ideas from theft. Mentioned below are the basic steps to protect one’s intellectual property.
- Register Your Intellectual Property
The first and most important step to protecting your asset, idea, or invention is to register it. You also need to make sure that it hasn’t been presented or invented by any other person or organization before you. Identify the category under which you need to register your IP, and then get Bitala & Co. to help to ensure that you put down a detailed description of the IP, along with its differentiating features, to understand how it stands out from other similar creations already registered.
Verify to see if your IP needs to be protected under more than one umbrella, i.e., you may need to register under more than one category to get full protection.
Though it is not mandatory to register your creation, however not doing so leaves you open to becoming the victim of theft. Someone else can take your idea, project it as their own, and you might not be able to sue or claim damages.
- Execute a Non-disclosure Agreement
Before you go ahead and share your amazing piece with someone, just make sure that you sign a non-disclosure agreement with that person. Have a witness present, and mention the date, the time and the place on the non-disclosure document. This document should be in detail and should state who are disclosing these details to. Only enlist a very limited number of persons, and only those who can help you in further development and planning.
Be careful whom you trust. The non-disclosure agreement should be signed and witnessed before you even utter a single word about your creation.
- Determine the Value of Your IP
You need to research the market and determine exactly how much your idea is worth. You would also need to understand the cost involved into implementing your creation, and the financial benefits arising from it – in present and future. Once you have the basics, you will have a better understanding of the way to go about protecting your IP. As Intellectual Property is an intangible asset, it is more important to ascertain its value and therefore it corresponding protection.
You should check the value at regular intervals, to make sure your IP is covered sufficiently. Always take professional help to evaluate your IP.
- Determine Theft Risks
Now that you have an idea what your IP is worth, you need to sit down and really think how vulnerable it is to being stolen, and consequently, what are the ways of preventing theft. Factors to be considered are its physical and virtual security.
Use the Vector Oriented Defence in Depth method. In this method:
First determine what you want to protect
Rank them in order of value, most valuable first
Come up with all possible ways it can be threatened
Take steps to prevent or minimize those threats.
If you are a relatively big organization, it may do you good to have an Incident Team to handle any IP related possible incidents.
Even if you are an individual or a small business have a back-up plan ready and waiting. Make sure you or your company follows strict protocol when dealing with IP. For example: shred everything. Don’t leave documents lying around. Have your employees, or even if it’s just yourself, follow the Clean Desk policy and shredding everything in sight.
- Take Expert Advise
You should engage Bitala & Co. – they are well versed in Intellectual Property Law. Scenarios change: with cases being fought and a win or a loss each day, such decisions can impact your current strategies and guidelines, and changes may need to be effected to ensure that the IP is sufficiently protected. Have regular meetings with Bitala & Co.; keep yourself apprised of latest developments.
Keep up to date with current practices and norms. It doesn’t hurt to go over possible outcome in current legal battles and be prepared for any outcome.
Not keeping yourself acquainted with the trends can adversely affect the cover on your IP. You may end up not being sufficiently protected, even though you were a year ago.
- Protect IP Physically, Technologically and Legally
There are several ways you can ensure that your IP is properly protected. Limit the access of individuals or employees to the area where your IP is located. There should be a physical access card or barrier in place only allowing people with a special permit to enter. Virtual protection with passwords and firewalls are a must to prevent hackers from accessing your system. Proper policies and protocols should be in place, backed up with legal documents signed by all included in the framework of the IP.
Re-evaluate around the clock. Pick Bitala & Co. Advocates to make sure your IP is not vulnerable.
Thoroughly train any new employees and apprise them of the consequences of failing to abide by procedure. Also, be careful that whatever advice you are taking from other lawyers and security experts falls well with legal boundaries.
- Implement an IP Management Process
Intellectual Property should be properly managed, from its inception till its life end. Even if an idea has come from an employee, it needs to come under the company umbrella. The entire process including inception of ideas or discoveries, their research, development, implementation, as well as archiving, needs to be thoroughly covered throughout. Your process should be owned by either you (with any individual idea) or by the organization. There should be no infringement by any other person or body that can claim rights to the IP.
Strong protocols help. Any breach should be reported immediately.
Here, you are susceptible to falling victim to theft if you do not have a strong policy protecting you or your company at every stage of the IP’s life cycle.
- Assess and Monitor IP Protection Policies Overseas
Before looking to get patents and trademark rights, you need to establish whether you will be distributing or manufacturing your product in other countries. Consider applying through the Patent Cooperation Treaty, which has several countries under its umbrella, and you can apply in all these countries with a single application, or with regards to trademark apply under the Madrid Protocol. The Madrid Protocol offers a single solution for applying with all countries that are signatories under the protocol.
Consider all possible eventualities before going ahead with international protection, such as eventual manufacturing hubs or export locations.
International protection is extremely expensive. Evaluate before taking the plunge.
- Copyright Your Material
All original works or creations, be they in music, art, literature or software, should be copyrighted. Having copyrights means that you are the sole person/ company that can adapt, replicate or circulate the product. Although it is not compulsory, it is always a good idea to protect your precious idea from someone else capitalizing on it. When you apply for a copyright, you must submit a non-returnable copy of your product, and it can take anywhere between 3 to 6 months to receive the copyrights.
Applying online is faster. With an online submission of a copy of your creation, you can get your copyrights with 3 months. Copyrights are non-renewable, and last for the life of the creator, plus 70 years.
- Maintain Patent and Trademark Protection
A patent gives the patent holder exclusive rights to an invention or discovery, barring any one else from reproducing or selling that product. A trademark is a design, symbol, phrase or word that differentiates a person or company from its competitors. Patents are of three types – utility, design and plant. For a utility patent, the product should be useful and unique. Design patents cover original designs for manufacturing purposes, while Plant patents include a new type of asexually produced plants.
Applying online is quicker, though legal help to fill the forms may be necessary, as they can be quite complicated.
Patents need to be paid for regularly and have a limited period between 16 to 20 years.
- Prosecute Your IP Violators
Never let your IP violators go free. Always be strict with following your procedures in case of any breach. If another person or company is using your trademark, you need to make sure that you hit them with appropriate legal action. Make sure all your patents, trademarks and trade secrets are sufficiently covered by making regular checks with Bitala & Co and take their advice on the approach you need to take when confronting IP infringers.
Don’t take an angle of Cease and Desist, and then back down. Empty threats against others won’t help you. Take appropriate legal action and inform them of the same.
Weigh the cost of such legal hassles against the value of your IP. Is it worth it?
This article was written by our External Correspondent, Sasha Musigi, for our weekly law newsletter, The Deuteronomy. To contact Sasha, write to her on email@example.com. To receive The Deuteronomy in real time, click HERE.