Intellectual property in software development

Common sense says that you need to do whatever you can to protect your business against competitors, especially those who are likely to copy your ideas and cut into your market.

The question is: is it always a good idea to do this by applying for a patent?

A recent panel discussion hosted at the Innovation Hub in Pretoria on Commercialising Intellectual Property debunked many of the myths around patents, especially for small businesses. Naturally, the need for a patent depends on the industry you are in. In certain industries it is unavoidable, but in others, the case is less clear.

Rapelang Rabana, a Cape Town entrepreneur who has created a number of software-based businesses, had the following pearls of wisdom to share with entrepreneurs developing code:

Pursuing a patent is not necessarily the best route to follow. The process is expensive, and for companies starting out it is more important to build a system that satisfies a need. Should a patent become a necessity, you can always hire a patent lawyer once you have the financial clout to do so.

When starting out, rather focus on protecting your source code and presence in the market by securing a trademark on your brand or product name. Protecting your source code can be done simply by explicitly transferring this intellectual property into the company's name. This should be done for any code produced by both the founders and staff.

Protect the source code. Physical protection of the source code can be done quite simply by ensuring it is always behind a firewall and denying access to this code, even investors.

Existing or new patents can be overridden by changing seven simple things in your product. Rabana decided to proceed with the development of her company's systems on the basis that should these be challenged by holders of patents, they could retrospectively make the necessary changes if the situation arose.

Registering a trademark can also be referred to when you have the scale and financial means to do so. Even though one of her first businesses was trademarked in South Africa and the United States, but denied in the European market, this did not deter or detract from her ability to grow a business because there was no intention to set up a European office.

Key takeaway: Don't be distracted by the need to go through the expensive trademark or patent registration process. Get your product or service developed, and if the need arises and you have the financial resources you can then go down this road.