From Idea to Reality: THEYA Healthcare

Taberer Attorneys is proud to be associated with clients who have shown the drive and commitment needed to translate an idea or invention into reality – to become successful businesses, well positioned for the future. Over the next few weeks we’ll be showcasing some of these clients’ businesses.

In our third edition of this series, we’d like to showcase THEYA Healthcare.

The idea for THEYA Healthcare came about in 2012, when CEO and Founder, Ciara Donlon was running her own successful lingerie shop in Dublin. Breast cancer survivors regularly came in looking for post-surgery bras but she was unable to find a product that really met their needs. 

Seeing the amount of distress this caused these women, who were already going through such a difficult time, Ciara decided to see if she could create a post breast surgery bra that put their needs first. 

With the input of 80 breast cancer survivors in Ireland and the UK, as well as advice from healthcare professionals, Ciara developed an innovative range of post-surgery lingerie. The bras and briefs are ideal for women who have undergone any type of breast, thoracic, pelvic or abdominal surgery. They are also a perfect choice for women who are receiving chemotherapy or radiotherapy. The range, which is made from a novel and patented bamboo mix fabric, promotes healing, offers exceptional comfort and functionality whilst remaining beautiful. 

Ciara chose THEYA, the name of a Hindu Goddess of power, to honour the strength of the women who inspired the brand. The plight of these women is one particularly close to Ciara’s heart, as her grandmother, Rose, the inspiration for the company’s logo, underwent a double mastectomy during her breast cancer treatment. 

Today, THEYA Healthcare recognises that its unique fabric and design process has potential to help many more people. As well as extending its post-surgery range of lingerie, it plans to develop further ranges which will have a positive impact on health and wellbeing around the world. 

Yet another amazing example of spotting a need, developing a solution and turning this solution into a commercial reality by building a business underpinned by innovation.

Marnus Broodryk and Roy Taberer weigh in on Ubuntu Baba

In her latest article, Carmen Murray highlights the incident this year where a small business owner, Shannon McLaughlin of Ubuntu Baba, discovered that her baby carrier product was blatantly copied and even called the same name by the retail giant, Woolworths.

She arranged a podcast interview with Roy Taberer, a patent attorney from Taberer Attorneys, Kimberleigh Stark, Actress and Producer from Stark SA, Shannon McLaughlin, Owner of Ubuntu Baba and Marnus Broodryk, SME Africa, to understand what the lessons are that we could learn from this and how can we protect our ideas better.

Read the full article here: https://www.bizcommunity.com/Article/196/87/186955.html

Roy Taberer features on The Carmen Murray Show!

Ubuntu Baba: How do you protect your ideas?

Marnus Broodryk, Shannon McLaughlin, Roy Taberer, Kimberleigh Stark

Shannon McLaughlin, owner of the Ubuntu Baba baby carrier, recently took on Woolworths for “stealing” her baby carrier design. This leads to an important question for entrepreneurs: How do your protect your ideas?

Listen to the podcast here: https://castbox.fm/app/castbox/player/id1382247/id121671905?v=4.0.29&autoplay=1

“Scamper” into 2019!

Steve Reid

The City of Cape Town runs an annual ideas competition called #YouthStartCT competition.   The competition sees over 160 entrants drawn from around Cape Town going through business activation training and pitching the business idea they entered.

I am unsure what entries will be on show in 2019, but if last year is a good gauge to go by, we should see some unique and impactful ideas going through from the original 100 eventually being weaned down to the top 10.

One of the factors that positions the uniqueness of the idea is the level of innovation embraced.  Last year saw unique ideas in recycling, social interaction and fashion/design to name a few.

Make no mistake, entrepreneurs and businesses are constantly looking for that product or service that will give them a sustainable edge and advantage. The door to this is mainly through innovation.

So what is innovation?

Innovation is simply doing or making something differently to meet a perceived need or gap in the marketplace. Innovation is not merely doing something differently for difference’s sake. Therefore innovation can happen in any industry that uses a procedure that can be changed.

An example of an innovator is George Washington Carver, (born 1861 died 1943),  an American agricultural chemist, agronomist, and experimenter whose development of new products derived from peanuts (groundnuts), sweet potatoes, and soybeans helped revolutionize the agricultural economy of the South.

He actually patented over 300 derivative products from peanuts; among them milk, flour, ink, dyes, plastics, wood stains, soap, linoleum, medicinal oils, and cosmetics!

Generally, innovation involves creative thinking that isn’t from a traditional viewpoint. It can be difficult when you’re very familiar with something to see it in another way. So several techniques have evolved to help you in this process.

The next question is which technique or tool to use to increase your own innovation engagement?

A popular and simple one is found in the acronym SCAMPER

SCAMPER is based on the notion that everything new is a modification of something that already exists. Each letter in the acronym represents a different way you can play with the characteristics of what is challenging you to trigger new ideas:

  • S = Substitute
  • C = Combine
  • A = Adapt
  • M = Magnify
  • P = Put to Other Uses
  • E = Eliminate (or Minify)
  • R = Rearrange (or Reverse)

To use the SCAMPER technique, first state the problem you’d like to solve or the idea you’d like to develop. It can be anything: a challenge in your personal life or business; or maybe a product, service or process you want to improve.

It is surprising how many products have been developed using SCAMPER, even if people were not aware of using it as an ideas generation framework.

Look at your mobile phone, it substitutes and combines so many things – phone, camera, torch, GPS, calculator, storage device, etc.  Think of how all the apps have added to the functionality of your humble smartphone. Each iteration not only adds to the functionality but apps then adapt, modify and the additional functions that each app adds.

This SCAMPER tool can be used in many ways.

Consider its application in improving sales within your business

Following the SCAMPER recipe, here are a few questions you could ask:

  • S (Substitute): “What can I substitute in my selling process?”
  • C (Combine): “How can I combine selling with other activities?”
  • A (Adapt): “What can I adapt or copy from someone else’s selling process?”
  • M (Magnify/ Modify): “What can I magnify or put more emphasis on when selling?”
  • P (Put to Other Uses): “How can I put my selling to other uses?”
  • E (Eliminate): “What can I eliminate or simplify in my selling process?”
  • R (Rearrange): “How can I change, reorder or reverse the way I sell?”

By thinking through the acronym and applying it systematically, one should be able to “uncover” a few key ways to improve the products, services or processes within your business.

Here are examples applied within Industry and well known businesses.

  • A mobile phone was combined with a camera and then an MP3 player. 
  • The roll-on deodorant was an idea adapted from the ballpoint pen. 
  • Restaurants that offer all you can eat have maximized their proposition. 
  • A low cost airline like SAFAIR has minimized (or eliminated) many elements of service. 
  • De Beers put industrial diamonds to other use when they launched engagement rings. 
  • Dell Computers and Amazon eliminated the intermediary. 
  • MacDonald’s rearranged the conventional restaurant by getting customers to pay first and then eat.

I think the magic of this process is that it can help us take our every day, ordinary and sometimes mundane world…….and transform it into value adding products, services and ideas through thinking and acting innovatively.


Steve is the manager of False Bay College’s Centre For Entrepreneurship/ Rapid Incubator. Their mission is to grow resilient, innovative youth enterprises.

The CFE/RI will be hosting an information session in February for those keen to start their entrepreneurial journey with the support of an incubator.

Those wanting to know more may contact 021-2011215 for more information or go to their website www.falsebayincubate.co.za

From Idea to Reality: Microbide

Taberer Attorneys is proud to be associated with clients who have shown the drive and commitment needed to translate an idea or invention into reality – to become successful businesses, well positioned for the future. Over the next few weeks we’ll be showcasing some of these clients’ businesses.

In our second edition of this series, we’d like to showcase Microbide.

Mary Skelly is an Irish American with a long career in the life-sciences. It was over a decade ago that Mary, together with a South African chemist, conceived of a family of highly effective, biodegradable chemicals that control infestations of anything from microbes (bacteria, viruses and fungi) to insects.

This family of chemicals, called aldehydes, are known biocides. However, they are also skin and eye irritants and they tend to have a very short shelf-life.

The invention of micellar aldehydes was stabilised to become targeted biocides – they effectively killed the target organism – before biodegrading to carbon dioxide and water. The patent protecting this invention is now granted in 76 territories.

Microbide’s formulations are environmentally friendly, ready to use, have a longer shelf-life, and are more effective than competing products.

The challenge was to commercialise these products to produce medical device disinfectants, spray-on larvacides for the control of mosquitos, and horticultural fungicides. This has been a long 11-year journey for Mary, which she has pursued relentlessly, finally resulting in the big break with a significant investment into the company which has put Microbide on the road to commercial success.

A production facility has been established in Wicklow, Ireland. Distributors for their products have been identified in the UK, Ireland, USA and Europe. Another significant market for Microbide is India, where they have commenced negotiations with several JV partners, and are sourcing local manufacturing and packaging facilities.

Yet another amazing example of taking an abstract invention to commercial reality by building a business underpinned by an innovative product.

From Idea to Reality: Papstix

Whilst great ideas or inventions abound, turning the idea into reality is something quite different. You need to look no further than the patent office, and delve into the countless patents on file, to appreciate great invention, but on paper. Many of these inventions never evolve into commercial reality.

Why then is it so difficult to bridge the chasm separating idea from business reality?

Without wanting to sound critical (and bearing in mind that I for one don’t have an inventive bone in my body) the reason in my opinion is simple: the need for absolute unwavering desire and commitment. More often than not, a person with an idea holds the notion that once they have patented the idea, the work has been done. They can now sit back and wait for the flood of offers to buy the patent.

Unfortunately, this notion is an idealization; a desire for the reward but not the sacrifice. Holding onto this notion often ends in disappointment. Ideas don’t sell, viable businesses built on idea or innovation do. It is in building these businesses – producing a product that is underpinned by the idea or invention – that the sacrifice necessary for success is required: the insane hours, the obnoxious bureaucracy and the many failed iterations.

Taberer Attorneys is proud to be associated with clients who have shown this drive and commitment to bring an idea into reality to become successful businesses, well positioned for the future. Over the next few weeks we’ll be showcasing some of these clients’ businesses.

Let’s starts with Papstix (Pty) Ltd.

Over a decade ago, pastry chef and hotelier, Lawrence Mattock, conceived of an idea of taking pap & relish from the plate to an eat-on-the-move, convenience snack. It took Lawrence from that early moment of inspiration to finally put his idea to the test by finding angel investors, building a prototype “patented” machine (which co-extrudes the pap outer layer and the relish core into a plastic sausage-shaped tube) and making the product which he calls Papstix.

Papstix is now a delicious, cheap, substantial and nutritious meal that comes in a variety of flavours including Original (tomato and onion relish), Chakalaka (mild and spicy carrot relish) and Chunks (soya and onion). Additional flavours are in development which will include Peanut Butter & Syrup.

Papstix have a 30-day shelf life and do not require refrigeration. Given the nutritional value, substance, ease of transportation and storage, the product is a great socioeconomic option for feeding programmes; providing an instant solution to rural and disaster areas as well as meeting the needs of starving populations and refugees.

Papstix are the ideal lunch-box meal for school children, with no need for heating, utensils or a plate, they can be eaten anywhere by anyone. Quick, easy, neat, nutritional and satisfying. Also ideal for school feeding schemes as well as school tuck shops or mobile vending during school events e.g. sports days.

An amazing example of taking a concept from a mere idea, to a reality, and building a business underpinned by an innovative product.

How can Entrepreneurs Protect their IP?

~ Roy Taberer

Entrepreneurship is associated with fresh, new, innovative or original ideas. This “newness” comes from the solution that the entrepreneur provides after identifying a gap in the market. The newness may be found in the entrepreneur’s:

  • novel approach to an established way of doing business;
  • new business idea or the provision of a new service; or
  • new product or new design to an existing product.

It will be helpful to the entrepreneur to understand each type of innovation and how best to protect her intellectual capital; her most important asset as an entrepreneur in this knowledge driven economy.

This intellectual capital can only become an asset or an item of property (intellectual property or IP) if it has been identified and then legally protected. If the entrepreneur does not recognise her innovation as such or does but does little to protect it, then the innovation will fall into the public domain, free for all to use.

Understanding where an entrepreneur’s intellectual property resides is complicated by the Patents Act which specifically excludes from patentability, a method of doing business. So, the pure methodology employed in the entrepreneur’s business must be distinguished from the technology that enables the business method. This discussion, hopefully, will assist in such an understanding.

A novel approach to an established way of doing business

This type of innovation could involve, for example, using contemporary technology to provide an existing service more efficiently.

Specific examples abound. One such specific example is the rise of food delivery services using an app-based interface between the restaurants or fast food outlets and the customer. In the past, the customer would have to call the delivery service, he would not have an idea of the status of his order and he would have to have cash ready when the food was delivered.

With the app interface, all these problems are solved – with an ease of ordering, tracking the order and paying for the order.

The innovation lies, not in the business of having an intermediary delivery service between restaurant and customer, as these types of services have been around for decades – it is in employing a novel approach of making this service better. The innovation comes in the development of a tool, typically an IT tool and, in this case, an app.

In this example, the intellectual property resides in the app. However, what exactly is this intellectual property and does the entrepreneur have to do anything once the app is developed, to get this intellectual property?

Apps     

Because of the commonplace nature of apps, special mention is deserving of this type of innovation.

Apps are being developed for use as a business tool amongst others, at an astounding rate. Think of UBER, banking apps in general and payment apps like Snapscan. They have become part of the way in which we conduct and manage our lives.

An app is software that is specifically developed for smart phones or tablets. Apps are, at their most basic, a set of instructions to the device on which they are loaded on how that device must function to output or do something.

The app has copyright in its various aspects the moment it is developed. There is no need for the developer/entrepreneur to do anything else. The protection brought about by copyright occurs automatically. A person who copies or adapts your code will infringe your copyright and you can use this right to stop that person and to claim any losses that you may have incurred as a result of his infringing actions. This is done by approaching the courts to assert this right, typically with the help of an attorney.

The frontend look and feel, as an output function of the app as displayed on a screen, is also the subject of copyright. And again, if someone was to appropriate this look and feel, they would infringe your copyright in the artistic work that is the displayed on the app page.

The limitation with copyright is that it protects the original sequence of code from being copied – it does not protect the concept for which the App enables.  If protection is sought for the concept, then the concept needs to be investigated to decide if the concept is a new business idea or the provision of a new service.

A new business idea or the provision of a new service

A good example of a new business idea in the South African context, is the “please call me” service.

A trainee accountant in the employ of Vodacom came up with the idea of a new service (for Vodacom it would be described as a new business idea) that would allow a person who has no airtime or SMS units to send a message to the person he wants to contact requesting the person to call back. The employee discussed the idea with his employer and there was an oral agreement that the employer would be remunerated for the idea. The story goes that the agreement was never honoured despite Vodacom putting the idea into practice and making money from the provision of the new service.

From the point of view of fairness, few people would argue against the employee being deserving of remuneration for his idea. However, the point of this article is to discuss how that employee could have better protected his intellectual property and prevented his employer from appropriating it for their own gain.

The employee’s idea was just that, an idea. An idea in itself does not make an invention. An invention can be patented, if new and inventive, an idea cannot. An idea is an objective, a plan or a policy. An invention gives meat to the idea by providing the technical detail as to how the idea will be put into practice to solve a problem. The employee therefore would not have been able to patent his idea as it did not come with new and inventive technical detail on how the idea would be achieved. And, as the employee did not write any software to enable the idea, copyright was not relevant.

Without the ability to patent, the question then is: what other class of intellectual property could the employee rely upon for protection? Unfortunately, not much.

The only protection is that achieved by contract. In the above example, the courts ruled that the employee was entitled to remuneration, but this was only because of the oral agreement that he had reached with Vodacom promising him remuneration.

It is important when proposing an idea to someone, and this idea has not evolved to an invention, to understand your vulnerabilities and to accept that at this early stage of the innovation pipeline, you do not have the ability to file a patent or rely upon copyright. Therefore it is important to bind in contract to respect the confidentiality of your idea and to reach a commercial agreement if the person receiving the idea, likes the idea and wants to commercialise it. This type of agreement is often referred to as a non-disclosure agreement or NDA.

A new product or a new design to an existing product

If the entrepreneur conceived a product that is previously unknown, not just in South Africa, but worldwide, then we have a new product that may well be patentable. The entrepreneur should approach a patent attorney to help her assess the patentability and to prepare a patent application. Once a patent is granted, the entrepreneur has an intellectual property asset that can be asserted to stop an infringer from copying her product. The patent can also be licenced to someone else to make the product, for payment of course.

A few famous examples of new products invented by South Africans include the Kreepy Krawly and Pratley’s Putty.

If the entrepreneur has applied a new look or design to an existing product, this new look product cannot be patented, as the product already exists, but he can file a design application to the new design applied to the product. A good example of a South African business that applies new design to existing product is Carol Boyes. This business applies beautiful design to every day products such as knives, forks, spoons and bowls.

A registered design, like a patent, is an item of property that can be sold, licensed or used within the business to stop others from making product with the registered design.

Trademarks

What must not be forgotten, of course, is the intellectual property in what you call your business or your product. In the examples given above, the words Uber, Kreepy Krawly, Pratleys, Snapscan and Carol Boyes are all trademarks. Trademarks are often referred to as brands.

Trademarks are potentially very valuable IP assets in that they can become well known over the years, like the examples above, holding value in the reputation that has accrued to the trademarks for the goods or services to which they are applied.

It is advisable as a new business to apply for a trademark to the mark that you are going to use to describe the goods or services that your business provides. This trademark must not be confused with the name that you call your company when you register a company, although the name of the company and your trademark can, and is often, the same.

For help with protecting your IP please contact us on +27 21 712 5087 or connect@tabererattorneys.co.za

Artificial Intelligence and Patent Law

What is artificial intelligence?

Simply, Artificial intelligence (AI) is intelligence demonstrated by a machine, in contrast to that displayed by organisms. Typical AI is capable of perceiving its environment and taking action based on this perception in order to maximise its chance of successfully achieving its goals.  AI spans the intelligence attributes of reasoning, knowledge, planning, learning and language processing.

Inherent in many AI systems is the use of algorithms which are capable of learning from data without the need for software updates. An algorithm is a set of unambiguous logical instructions that are programmed into a computer to enable the computer to solve a problem.

AI has developed in fits and starts since the term was coined in the 1950s. Development in this arena has accelerated in the last few years, driven by increases in system interconnectivity, cloud computing infrastructure, research tool and dataset availability and a decrease in the cost of all this.

AI and the implication to patent law

AI is becoming increasingly topical in all fields of human endeavour, so much so that it is described as being responsible for the 4th industrial revolution. It is anticipated that few, if any, fields of human endeavour will escape the relentless march of this revolution. Patent law is one such field that will have to adapt to this advance or risk being found irrelevant, no longer capable of achieving its stated goal of encouraging innovation.

There are a number of discrete issues up for consideration when discussing the implications of AI on patent law. These issues include:

  • AI as an inventor;
  • The eligibility of inventions based on AI;
  • AI as an infringer of a patent; and
  • The relevance of the current inventive step standard in the light of AI.

I’ll touch on each of these issues over the course of a series of articles on this topic.

In this article I’ll deal firstly with the issue of AI as an inventor.

Artificial intelligence as an inventor

The first known patent to have been issued for an AI generated invention is US 5,852,815, issued back in 1998. That particular AI was given a name: the Creativity Machine. This invention did have a human co-inventor and the involvement of the Creativity Machine in this invention was not disclosed to the US Patent Office. Thankfully, I would suggest. With the exception of Saudi Arabia, no legal system has developed to recognise AI as a legal subject, capable of holding rights and incurring liabilities. Saudi Arabia recently granted citizenship to Sophia, an AI powered robot. She becomes the world’s first AI citizen.

In the US, the Courts have consistently explained that the mental act of invention, i.e. to conceive of a complete and operative idea, requires a “natural” or flesh and blood person. Corporates thus are not capable of invention. They are however capable of owning an invention which was subsequently acquired from the inventor by an act of transfer.

In South Africa, an inventor, or a person acquiring the rights to the invention from the inventor, may apply for a patent to the invention. A “person” includes a natural person and a corporate (or juristic) person.  There is no definition for the term “inventor”. With this issue not coming before the Courts, it is accepted practice that only a natural person can invent.

In both legal systems, the inventor is the initial owner of the invention. The application is incomplete if an inventor is not disclosed.

With AI as a co-contributor to the invention, the solution, as before, would be to list the human co-inventor as the inventor. However it becomes a potentially intractable problem if the invention is generated entirely by AI.

To solve this upcoming problem, the law will have to change either by recognising AI as a legal person or to allow applications to be filed in which the inventor is not listed, if AI is the inventor. In this scenario, the rights to the patent will accrue, by law, to either of the owner or developer of the AI.

Author: Roy Taberer

Patent Attorney Cape Town

QUALITY not QUANTITY

Trite but true. But this statement is not often associated with intellectual property.

The Copyright Act states1 that copyright shall be infringed by a person who is not the owner or is not licensed, if that person reproduces the work in any manner or form.

There must of course be a causal connection between the work and the “copy”. The original work must be the source from which the alleged infringing work was derived.

This begs the question: what is a reproduction of, say, a piece of music or a book? Do you have to reproduce the whole work to infringe or can you take a part of the work and avoid infringement? Can I, for example, take a paragraph from a 300 page book and incorporate it in my own manuscript or article. Could I take a few bars from a piece of music and include them into my musical work?

Well the answer is not a simple one, it never is in law. Gleaned from case law, the principle is that it is the quality of what is taken that is important in determining if copyright is infringed, not the quantity.

In attempting to answer the questions posed above; if the paragraph or bars include the substantive, stand out or characterizing essence of the work (quality) then infringement is likely. You would probably avoid liability if you took from the work the mundane, common place or hackneyed interludes. Of course this is a subjective analysis and no two adjudicators on this issue will necessarily come to the same conclusion as to what constitutes the quality of the work in issue.

It would be, however, logical to assume that the shorter the copied extract is, the less likely that the extract contains a qualitative part of the work.

This issue came before our courts recently in Moneyweb (Pty) Ltd vs. Media 24 Limited.

The presiding judge approved the test (laid down in an earlier case) that it is not necessary for a plaintiff in an infringement proceeding to prove the reproduction of the whole work:  it is sufficient if a substantial part of the work has been reproduced. And, In order for there to have been infringement of copyright in an original work it must be shown that there is sufficient objective similarity between the alleged infringed work and the original work, or a substantial part thereof.

Before the court were seven articles published on Moneyweb’s website which Moneyweb alleged Fin24 copied by publishing counterpart articles on their website between 5 to 7 hours later.

The court analyzed each of these articles first for originality and found that only three of the articles, articles 5, 6 and 7 were original and therefore qualify as a work deserving of copyright protection. The other articles failed to qualify.

In determining  whether a substantial part of the work has been reproduced, the court’s approach was consistent with the precedent mentioned above which was to take a value judgment based on the work as a whole, focusing more on the quality of what has been taken rather than the quantity.

It was common cause that no verbatim copying occurred, Fin24 conceded to reproducing part of each article, but argued that the taken part was not a substantial part.

In the end, after a painstaking comparative analysis of each of the articles, the court ruled that Fin24 had indeed reproduced article 5 as much of the Fin24 version was a word-for-word copy that was released a mere 7 hours after the release of article 5 and, in addition, what was copied was substantive, it included the essence or core of article 5.

As for Moneyweb’s article 6, the court found this article not to have been reproduced by Fin 24. In reaching this decision the court concluded that very little quantity of article 6 was copied and this copied quantity did not include anything qualitative.

Finally, the court also concluded that Moneyweb’s article 7 was not reproduced. Although many parts of the Fin24 article were word-for-word extracts, these extracts were a small part of a lengthy article that held no conclusions or summaries and therefore did not constitute the heart of the Moneyweb article.