You have an idea! You’ve heard about intellectual property. That apparently you could protect this idea and keep it from others who may intend to ‘steal it’! You’ve probably asked, “can I patent my idea?”, Well, that’s every IP lawyer’s nightmare.
Here’s 5 things you need to know about intellectual property.
1. You Cannot Patent an Idea
Ideas are great, they’re awesome. If implemented they could be worth a million dollars. However, the value of this ‘great’ idea really is nil.
Ideas are not protected, we all have ideas. Some may actually be similar; the execution however, is what will differentiate the worth of each idea.
Intellectual property protects expression of ideas in tangible form which could then be lines of code, machines and hardware, tangible tools etc.
Copyright covers expressions of the mind which could be expressed in writing as literary works so stories, books, poems, software etc., sound recordings such as musical beats, sound productions and tunes, musical works such as songs, audio visual works such as videos and films. Of importance is that in Kenya, software is protected under copyright.
Trademarks covers names and phrases of products which have gained notoriety and are recognized across the board. For instance, ‘usiseme mkate, sema Supaloaf’ or ‘the home of value’. Also all the logos and marks e.g. The Nike tick, the bitten Apple, the Techweez T.
Service marks are names and terms used to identify specific services.
Patent rights protects processes, devices or products. It has to be an invention, have industrial applicability and be extremely novel and new. These generally cover hardware.
2. Know Who To Go To
Our Kenyan legal system recognizes different forms of intellectual property. These are trademarks, patents and utility models and copyright. We have two relevant bodies, the Kenya Copyright Board and the Kenya Industrial Property Institute.
Copyright is governed under the copyright act and institutional responsible is the Kenya Copyright Board. The board offers application, registration and verification of copyright.
Additionally, the Board maintains a database of all creative works of the mind that are registered which is accessible here.
Questions? Tweet at @kenyacopyright, email firstname.lastname@example.org or go to the NHIF Building 5th floor, just cause you can.
Pretty much everything else other than traditional knowledge is under the mandate of the Kenya Industrial Property Institute and governed under the Industrial Property Act and The trademarks Act. KIPI covers trademarks, service marks, patents, utility models, industrial designs.
The process of registration and management of trademarks are relatively technical and I would advise procuring the services of a legal professional lest you get mixed up in the TM forms and application in series jargon. (See no. 5) Tweet KIPI at or just go to their office in south C off Mombasa Road, near Bellevue.
Even more complicated are patents and utility models applications, it takes about 3 years on average to have a patent registered because of the rigorous and complex process involved. Get a patent agent to advise you or walk through the process with assistance from the Institute.
3. You Have to Disclose in Order to get Protected
It is critical to understand that the price for protection is disclosure. For you to get legal protection for your innovation and creativity, you must disclose it to the authorities. This is because one, it must be indeed innovative and new if it’s not then it’s not novel; also, for the development and maintenance of an innovation database.
The state is seen as a custodian of all including your innovation and it is expected that they shall uphold and protect it. In case of disallowed disclosure and damage resulting you can actually sue the state.
That being said, if you don’t want to disclose you can use trade secrets which is a form of IP where you don’t have to share with anyone your processes and secrets. Think Coca Cola and KFC recipes.
4. Who owns What
You’re working for a tech multi-national, perhaps at the research lab. You’ve been working on this project to come up with an ingenious solution or there’s this one error in the system no one get around. As an employee, you figure it out and fix it. Great idea! Bad news, that intellectual property is not yours, it’s the company’s.
Depending on the relationship and contract you have with the third party, this work of your mind could actually end up belonging to someone else.
Another common illustration especially in the start-up scene is you’re a group of friends, several start-up founders. Each with a different role. A is the face of the company and perhaps even registered it alone as the sole shareholder. B, you, is the techie. The brains behind the app, coder extraordinaire, you can identify a misplaced comment in your lines of code from miles away. Your software ends up being one of the best and most talked about solutions. Guess what, if you hadn’t defined that relationship you could end up losing out.
There may be instances of joint ownership where each person has some share of the work. It could also be registered under the partnership or company name.
DTR your situationships. Define the relationships which takes me to the next point.
5. Get a Lawyer
We generally don’t like them, damn these suits and their darn expensive fee notes… Until you get into a run in with the government or you grow too big too fast, crisis hits and then you find them.
Find a good lawyer who understands your industry and product well. They will guide you on the best entity vehicle to use to run your business. They’ll come up with contracts which clearly define the relationships between you, your partners, employees and contractors if any, your investors and shareholders.(See no. 4)
They’ll advice you on the tax obligations, industry compliance rules, licenses and required permits. (Side bar, you probably know that the Aviation Authority now provides for Drones regulation, do you have any idea how to go about application for the same?)
Talk. to. a. lawyer.
In conclusion, to demystify the key IP terms, think of your mobile phone, take an Apple iPhone 6 the names Apple and iPhone are trademarks because the names has gained notoriety arguably globally and when you hear the name you immediately correlate it to certain traits for instance quality, high end value and data protection. The OS (operating system) iOS is the software and thus falls under Copyright, the physical model, screen and edges are patentable.
Now you know why you can’t patent your idea.
This article is in honor of World Intellectual Property Day, slated for the 26th of April this year.