Roberto CoelhoBy Roberto Coelho|February 25, 2022|6 Minutes|In Opinion


How entrepreneurs can guard against vultures.

The first lesson of entrepreneurship is if you come up with a good idea someone is going to try and copy or steal it.

An entrepreneur’s worst nightmare must be the scary world of intellectual property, patents and copyrights.

These words can bring heartbreak, injustice and astronomical legal fees.

In the heart of it all, in the legal world in Africa, is David Gilson. He is a seasoned intellectual property attorney and partner at Webber Wentzel, in Johannesburg, on the cusp of retirement, who has seen it all.

“Startup costs can be very daunting, so you got to do what you can with the limited funds that you have,” he says.

In his line of work, industry disrupters, flamboyant founders and cautious CEOs alike fear three words the most: an idea copied.

“The first lesson of entrepreneurship is; if you come up with a good idea someone is going to try and copy or steal it.”

The list of cloned inventions and identical ideas is frightening. It forces many budding entrepreneurs to keep secrets and never share ideas.

Whether this is the correct strategy is debatable. Personally, I believe one must share ideas between close friends to hear input, as often we are blind to threats and opportunities.

The question is around how to protect ideas.

“Intellectual property is on the one hand simple; you develop something, so go and protect it,”

says Gilson.

“But it is actually not that simple, as it is expensive, but the one advantage is copyright.”

Copyright is the law given to artists, inventors, and creators. A collection of rights that automatically vest to someone who creates an original work of authorship; be it a book, a song or software. Yet it is not that clear cut.

“All though one may be protected, the cost of taking action often outstrips what you may get back.”

Most entrepreneurs search for further protection in the shape of patents.

A patent is essentially a license conferring a right for a set period to exclude others from making, using or selling an invention.

For those interested in patenting an invention the requirements are twofold.

Firstly, the invention must be novel; fundamentally, different from anything created before.

This is naturally very difficult to achieve as global inventions are broad and possibly unknown. As a result, patents often protect certain elements of the invention and not the entire invention.

“There are two prime requirements for a patent, the first is the easiest, it has to be novel and different, this may be difficult to determine.”

The difficulty in determining the novelty of an invention is where a lawyer proves his worth.

Without a strong attorney it is easy to overlook a prior invention, resulting in a worthless patent and money wasted.

The second requirement is inventiveness, how inventive was the invention. This is clearly very subjective and will be dependent on the individual reviewing the patent.

“The second requirement is non-obviousness; it cannot be obvious.”

In reviewing one’s invention, the question must be asked if an industry expert, in any given field, would suggest the invention was obvious.

This may be challenging for a founder to determine as often solutions to problems seem obvious for the person who created it.

Thus, patenting is a murky process.

“One need’s a balance between the best protection one can afford before going and trying to commercialize.”

Balancing fees and protection are key; it is unwise to spend an exorbitant amount of money on protection without customers knocking on the door.

“People often think that if they have something worthwhile and they patent it all doors will open,” says Gilson.

A patent is not a business, and a business is not dependent on a patent.

Registering a patent is not good enough, to be successful one must search high and low for potential clients and hustle until the sale is made.

“If you have something worthwhile you actually have to do something with it. Go to companies and sell it.”

When searching for buyers remember a further method of protection, the Non-Disclosure Agreement the NDA.

“But before going to companies have a watertight NDA.”

An NDA is not as strong as a patent, but it provides a thin layer of protection.

Nevertheless, always remember the first lesson of entrepreneurship, regardless of where one’s business is, or in what field, vultures are waiting to copy.

There is only one proven method of staying one step ahead: continuous reinvention and innovation.

In fact, stay five steps ahead – to be safe – and don’t look back.