Sole trader

I’ve got a great idea and want to protect my intellectual property. What should I do?

By James Omond
Wednesday, 03 October 2012

This week’s Secret Soloist is answered by lawyer James Omond.


Unfortunately, this question is a bit like the old chestnut about the piece of string. So at the risk of being accused of not giving a straight answer: It all depends.


The bad news is that you can't protect an idea as such. What you can protect is certain embodiments of the idea. For example:

  • If your idea is for a new way of doing business, you may be able to get protection via a "business process patent". This is a new kid on the IP block and if you think it might be what you need the first thing is to speak with a patent attorney. (Warning – these guys aren't cheap – but you get what you pay for.)
  • If your idea is based around branding, you can protect the brand by registering a trademark. To do this, you need to talk to a trademark attorney.
  • If your idea is embodied in some form of design, you may be able to get protection under the Copyright Act (which doesn't need any form of registration, so no additional costs) or under the Registered Designs Act.
  • If you are producing more than 50 of the same thing, you'll probably need to go with the latter. Probably best to talk to a patent attorney again on that one.

One last thing to keep in mind – don't tell anyone! If you want to go with patent protection, your patent will be invalid if you have disclosed the idea to anyone before filing for protection.


For other forms of idea, you should get a "Confidentiality Agreement" signed by the person you are disclosing to. But bear in mind that in the real world it is very difficult to enforce these types of agreements.

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