Putting a patent on it starts with listening well

14 August 2016 - 02:00 By Margaret Harris


Elaine Bergenthuin, owner and managing partner of De Beer Attorneys, tells Margaret Harris that ambition is important, but you need time, dedication and hard work to get where you want to be What does your job entail?I'm a lawyer specialising in intellectual property (IP) law, which means I secure a monopoly for the new brands, ideas and innovations of my clients by obtaining patents, trademarks, copyright and registered design rights on their behalf.What are some of the unusual patents you have worked on?Clients do sometimes come forward with the strangest ideas. Some of the most interesting things I've patented include a belt (to be worn by a woman) that you add soil to and then plant grass seeds so that you effectively grow your own hula skirt. Another is a mask that you pin to your face, with the pins embedded in your skin. The mask can then be stretched and pulled to provide a "facelift" of sorts. I don't think the idea of pinning something to your face would appeal to many.story_article_left1How does software IP differ from other types of IP?You cannot generally obtain patents for software in South Africa. This is probably why people look to copyright to protect their software developments. However, copyright does not provide the same level of protection as a patent. Copyright is limited to the actual syntax and programming language used in the software code. In contrast, a patent protects the broad idea or functionality behind the code.A patent is also registered, so it is much easier to enforce against third parties. There are certain exceptions to the rule allowing software patenting to be a viable option to explore. Once a software programme provides some form of technical advantage, it will be eligible for patent protection - for example, if a mobile app somehow stores or obtains information from a database.What are the four most important tasks you perform?Making sure that I clearly understand what my clients are after is always the first step. This means really listening to what the client has to say. It is surprising how much important information is missed if you're not paying full attention. Second , I assist clients with the preparation and filing of new patents, trademark and registered design applications in South Africa and abroad. We have a network of foreign associates in all countries with whom we work to secure clients' rights internationally.Where international companies are looking to enter the South African and African markets, we secure protection for their intellectual property locally. I am also involved with enforcing clients' IP rights against third parties. Most of the time cases of this nature are settled outside the court, but we do sometimes need to resolve issues via the courts. I ntellectual property law matters are almost exclusively heard in the High Court in Pretoria, which is the only court with jurisdiction to hear IP matters.What do you find most enjoyable about your work?I love interacting with clients and learning about their new ideas, exciting new projects and developments. I also get to see and experience some of the exciting technology innovations before they hit the market. If I'm lucky, I get to be involved behind the scenes with new product launches.What makes your job difficult?It is sometimes difficult finding time to relax, especially when we are involved with litigation matters or where there are tight deadlines.story_article_right2What did you want to be when you were a child?I wanted to be a doctor but I ended up studying electronic engineering on a whim, although I always had a love of languages. After university, I wanted to study further and decided law would be a good fit. During my legal studies I learnt about patent law, for which you need both a technical and a law degree to practise.What important lesson did you learn from your first paying job?That Rome wasn't built in a day! Having ambition is great, but you will need to start at the bottom and it will take time, dedication and a lot of hard work to reach the heights you want.What qualities do you need to do your job?Language skills. With law, language is your biggest tool. You also need time-management skills. You are ultimately selling your time, so you need to know how to spend it wisely.

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