INNOVATORS and start-ups are often so enthusiastic about their great ideas that they forge ahead with their business without taking time to protect their intellectual property (IP), according to Dr Alwyn Bernard Dippenaar, a Senior Associate and Patent Attorney at KISCH IP. Attorneys.
The patent attorney said this could result in costly battles and losses in future. “Entrepreneurs and business owners often fail to ensure that their business structure has the necessary legal and administrative foundation to survive the challenges often experienced by successful ventures.”
He said that the most important asset in a business is its IP, especially when it comes to patents, designs and copyright, which is not secured with a paper trail proving who designed or developed the invention, design or work in question. Dippenaar said the ‘administration of IP assets’ or keeping records securely with a lawyer reduced the risk of losing a legal battle over IP later.
He said businesses and start-ups often failed to maintain an accurate timeline regarding contributions to innovations and know-how. "Such failure to keep one’s house in order from the get-go often results in unwanted headaches at a later stage. Unfortunately, eFuture-proofing a business requires meticulous attention to a plurality of legal documents, including contracts, agreements, the storage of digital files, and the like.”
As an example, he said two ingenious engineers developed a novel detector for identifying high-quality minerals in a raw material deposit. While both engineers played significant roles in developing the novel detector, only one was tasked with generating the technical drawings.
The software used to generate the technical drawings is associated with the engineer generating the technical drawings on his or her computer, which means only their details are reflected on the drawings. In a dispute over ownership, the engineer whose details are embedded in the drawings could argue they are entitled to a larger slice of the proverbial pie.
Dippenaar added that the challenge of proving IP ownership in a case such as this is complicated by the fact that several versions of technical drawings are often generated in the process of developing the final product.
“These technical drawings are often large in size, resulting in the user deleting previous versions to preserve space on their computer’s hard disk. This is poor practice, as disputes regarding inventions and when they were conceptualised often rely on dated meta data associated with previous versions of the technical drawings,” he said.
“As is evident in patent, design and other intellectual property-related litigation matters, the dispute regarding who was the first in title to design an invention (the principle of so-called “novelty”) is swiftly dealt with when one can produce current and previous versions of the technical drawings to provide the necessary proof that one was the first inventor. Objective proof of ownership is also key in copyright disputes and could make short shrift of an otherwise potentially long, drawn-out and costly court case,” he says.
Dippenaar said a simple solution to these scenarios was to deposit legal contracts and agreements setting out a clear chain and timeline as regards ownership in escrow.
“Depositing documents and/or data files in escrow often entails the user placing the documents and/or data files on a removable hard drive to be safeguarded in storage by the legal representative. In the event that a dispute arises, the user can simply call upon the legal representative to furnish the necessary documents and/or data files together with their dated meta data. Once verified by a qualified auditor, making such documents and/or data files available will provide undeniable proof of ownership and the associated date of creation,” Dippenaar said.
He said fees associated with depositing documents and/or data files in escrow may be minimal compared to the costs of litigation.
BUSINESS REPORT