How to secure your startup: what you need to know about intellectual property law

Successful entrepreneurs and inventors have a special power: they can turn ideas into tangible reality. Instead of daydreaming about possibilities, these business-savvy brain-stormers are action-oriented. Ideas make them move, test, try and schmooze – whatever it takes to get that brilliant product to market. Unfortunately, that bias to action can also trip them up if they, like many, decide to “float” an idea in the marketplace or to potential investors before consulting an intellectual property lawyer.

We asked Jennifer Marles, a partner with Oyen Wiggs, a Vancouver law firm that specializes in advice relating to intellectual property, about her experience with unknowing entrepreneurs. She told us that one of the saddest calls she takes is from excited businesspeople who have waited to patent their invention until they see if it sells. By then, it’s too late.

“In most countries, you have to file the patent application before there’s any public disclosure of the invention,” says Marles.

Public disclosure, she explains, is a looser term than most expect. Any sales or advertising of your product, whether via billboard, online store or word of mouth at the local farmer’s market may be considered public disclosure. But disclosure can also be triggered when you present your idea to potential investors, either in a boardroom full of 20 people, or during a private lunch for two.

“It doesn’t matter if it’s just one potential investor,” explains Marles. “If you reveal the nature of the invention, it’s public disclosure.”

So how does a tech startup get off the ground without seeking funds? A non-disclosure agreement. An invention is still patent-eligible if all the people aware of it have signed one. For extra security, Marles advises clients send a follow-up email after presentations detailing the main points of their big reveal and requesting recipients confirm they agree with the summary. This way, there’s less chance of an investor saying they heard about the product somewhere else.

While startups usually operate on a shoestring budget, this is one area where advice from professionals can’t wait, says Marles. Most law firms that specialize in intellectual property law, particularly in Vancouver, understand the needs and limitations of cash-strapped startups. Some even offer starter packages covering the essentials, so aspiring businesspeople won’t make costly mistakes at the outset. An Oyen Wiggs’ start-up package, for instance, sends entrepreneurs away with a legal non-disclosure contract that startups can begin using right away. Having one even makes attracting investors easier because you’ll be assuring them that they are putting their money behind a well-protected product, adds Marles.

So, what if you’ve already let the cat out of the bag and patenting is no longer an option? An intellectual property lawyer can help you determine if you are eligible for other types of protection, such as copyright or trademark.

For example, even if the app you invented isn’t eligible for patent protection, the code you wrote to make it work is automatically eligible for copyright – just like an original work of fiction or musical composition. Even without a patent, you may still be able to include “first-ever” or “original” in your branding. The rest of your product’s look and feel can also be protected. All of these protections, while not as muscle-bound as a patent, are far less expensive and arguably just as important.

After all, there are plenty of productivity apps that offer more or less the same functionality. What sets the top ones apart are look and reputation. A lawyer with intellectual property expertise can help you figure out the smartest way to spend your limited funds.

So, next time you have a million-dollar idea, your first call should not be to a potential designer, potential investor or even your mom: call an intellectual property lawyer. They can help make sure your idea remains yours.