A concise guide for startups: Don’t begin just to be blown away

28 Mar 2023

For startups, the most valuable assets are often those which are invisible. Intellectual Property (IP) rights are immensely important for startups as these rights grant their holder exclusive right to commercially exploit their IP for a duration of time.

At their inception, startups are encouraged to share information and to divulge their business plans, ideas, innovation and strategies with would-be partners, investors, vendors, suppliers and other third parties. It is at this stage that protecting a start-up’s IP becomes important.

Prior to discussions with third parties, startups should be encouraged to ensure that Confidentiality and Non-Disclosure Agreements are signed with those parties with whom they intend to work. It is also important for startups to ensure that proper employment contracts and service level agreements are in place in order to safeguard their proprietary information. Safeguarding confidential and proprietary information is much easier at the early stages of a startup’s business rather than once the startup has become successful.

Once the above contractual aspects have been established, the IP vesting in trade secrets, patents, designs, copyright and trade marks needs to be considered and, where applicable, the rights pertaining to such IP should be registered as a matter of priority.

Patents are very useful to protect the core value of a startup’s innovation. By filing a provisional patent application, a startup can inexpensively secure provisional protection for their innovation.

Technology landscaping reports are valuable tools which are available for purposes of assessing the technology landscape and establishing where there may be gaps in technology which present opportunities for startups.

Competitor landscaping reports offer valuable insight into the activities of competitors globally and reveal competing technologies which the startup should be aware of. These reports also provide important information on freedom to operate (FTO) which is pinnacle to ensuring that the startup does not infringe on existing patents.

Proprietary know-how can be best protected by way of trade secrets provided that the confidentiality thereof is contractually preserved.

Copyright vests not only in illustrations and literature content, but also in respect of software, technical drawings and databases and it is important for startups to be mindful of the importance of securing their copyright.

In developing software, startups may decide to incorporate open-source software (OSS) into their code. Of great importance is for a startup to be aware of any licenses governing open-source software and how this may affect the use of such software. For instance, OSS may have a license that does not permit the startup from distributing their software commercially; or that permits the startup to distribute their software commercially only when the startup’s source code is transformed to open-source software. This, in turn, could jeopardise a startup’s IP protection or have the non-desirable effect of a startup having their confidential and proprietary code made publicly available. Here, a startup should be aware of the risks of breach of contract and/or copyright infringement and should tread carefully when using OSS.

Before a startup reveals and starts to market their business ventures through their website, it should ensure that patent protection has been properly sought and that their copyright is secured.

Importantly, when conducting business on the internet, startups must be cognizant of having proper Terms of Service, Privacy Policies and Cybersecurity Policies in place.

Startups work tirelessly to establish a name for their business, a brand for their products and their domain names. Here, trade marks become intrinsically important and it is important for startups to ensure that proper trade mark protection has been considered and implemented. Trade marks assist in identifying and differentiating the startup and its product and services from those of competitors; as well as creating instant recognition and conveying quality in respect of its products and services.

KISCH IP is ready to assist you with all your startup’s Intellectual Property and Commercial Law needs.

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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Ursula Baravalle

Ursula is a Director and Patent Attorney at KISCH IP. She has experience in: Drafting local and foreign chemical, petrochemical, biochemical, microbiological and pharmaceutical-related patent specifications; Prosecuting international patent applications... Read more about Ursula Baravalle


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