We can all agree that an innovative idea can be the starting point to create a successful business, but before presenting it to potential investors, it is essential to establish certain safeguards to protect it against unauthorized use.
It is common to encounter situations where entrepreneurs make the mistake of disclosing their business idea or project in too much detail without having taken the necessary legal protection measures, which puts at risk the work and effort carried out so far and, worse yet, allows third parties to take advantage and gain a competitive edge by copying and launching it to the market first.
Ideas themselves are not protectable
From a legal perspective, it is important to be clear that ideas themselves are not protectable. Their possible protection does not lie in the idea itself but in the concrete expressions and the ways in which it is materialized. That is, how the business idea is transformed into a tangible or intangible product and/or service that can be subject to protection.
“Spanish case law has established that ideas will be protected when there has been an original externalization of them. That is, when the idea has been materialized in a work that can be literary, artistic, or scientific expressed by any means or medium, tangible or intangible, currently known or that may be developed in the future.”
What key issues should you consider before presenting your idea?
Let’s review the key points to consider in this case:
1. Materialize the idea. Before presenting your innovation to investors, you should have developed at least one product and/or service that reflects your concept or business idea.
We recommend documenting and registering the creative process. It is important to prepare, for example, sketches, create a functional prototype of your invention, prepare technical or functional documentation, create industrial designs, program the software, etc.
From there, you should evaluate which elements themselves may be protected under different legal figures established by the Spanish legal system, such as patents, copyrights, trademarks, industrial designs, utility models, among others.
2. Signing Confidentiality and Non-Disclosure Agreements (NDAs). A confidentiality agreement, also known as an NDA (Non-Disclosure Agreement), is a legal contract between two or more parties establishing that certain shared information must be kept secret and cannot be disclosed or used without authorization. It is important to define what information is considered confidential and to establish the parties’ obligations and the consequences in case of breach.
It is important because signing it ensures that details about the innovation, projects, technical data, or business strategies are not disclosed to third parties without your authorization.
It is crucial, before sharing key details, to request that potential investors or collaborators sign a confidentiality and non-disclosure agreement (NDA), as this will help prevent the information about the project from being used without your authorization and also establishes a legal framework of responsibilities in case of breach.
3. Evaluate appropriate legal protection methods or systems: There are different protection routes if we are dealing with a patent or utility model, industrial design, trademark, software, etc.
Obtaining specialized legal advice in intellectual property is essential to choose the best protection route or system and to determine an individualized and appropriate strategy.
This matter is fundamental since each protection route or system has its own requirements. For example, in the case of patents, for an invention to be registrable through this route, it is necessary to meet the novelty requirement, meaning it has not been publicly disclosed before the patent application date.
4. Competitor monitoring: It is advisable to monitor your main competitors so that you can act in case of infringement or rights violation and establish appropriate defense mechanisms.
Conclusions
Carrying out adequate preparation before presenting your project to potential investors can be key to effective negotiation and maximizing the value of your innovation, avoiding risks derived from unprotected exposure.
Always ensure, before presenting your project, that you have the appropriate protection methods in place to avoid future risks.
Article written by:
Lawyer specializing in intellectual and industrial property and new technologies
estefania.asensio@metricson.com
About Metricson
Metricson is a pioneering firm in legal services for innovative and technology companies and a specialist in intellectual property. We specialize in protection, developing protection strategies, as well as the judicial and extrajudicial defense of intellectual and industrial property rights.
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