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Don't Let the System Let You Down: Additional Considerations for IP Protection

May 19, 2017

 

There are many systems and legal approaches that are helpful in protecting the valuable thoughts that arise from our mind. For artists of all varieties, copyright protections vest the moment an idea is transformed from being an intangible mental image into something more tangible, such as a painting, script, or audio recording. For businesses offering goods or services, trademark laws assist in preserving the goodwill that each business has worked so hard to build. For inventors, the granting of a patent gives the exclusive right to make, use, and sell the invention that was patented. And when the value of an idea is in the fact that the idea is classified, maybe it is better kept as a trade secret. 

 

Even those who make use of these systems can find themselves paying heavily to protect their IP.  People rely so heavily on the various intellectual property systems that they overlook the value of good business, good relationships, and due diligence. This is a reminder that a well developed plan to protect your intellectual property goes beyond following the typical procedures.

 

 

• Do Your Research Upfront

 

Before jumping feet-first into a project, do your research. It is common to have attorneys conduct preliminary searches before registering a trademark or filing for a patent, but a lot of headache can be avoided if a bit of investigation is done from the get-go. Even something as simple as your choice of company name can have serious consequences down the road. Imagine you have registered your domain, designed your logo, branded your products, and shipped your goods across the country using the clever company name you quickly made up. Then, you find out that the name you have chosen has already been registered with the trademark office by another company. Do you really want to have to change your name, recover all of your products, and rebrand all of them? Or, similarly, what if you take your product to the market to find that some of the technology you use infringes on an existing patent? Now you will need to negotiate with the patent holder for the right to make and sell your own product. Would you have gone to market if you had this information in the first place? Who knows?

 

 

Work With the Right People

 

It makes sense as an entrepreneur to want to partner with those who have the ability and the know-how to turn your ideas into something great. But just because someone has the resources to help you doesn’t mean that they are automatically a good fit for you or your business, and it certainly doesn’t guarantee that they are trustworthy. After all, business is about relationships. My message here is simple: know who you are dealing with and act accordingly. 

 

 

• Contract Wisely

 

Even if you think you have chosen trustworthy people to work with, you can never really be certain. Make sure you have the right contracts in place before sharing your intellectual property. When dealing with third parties, have a good non-disclosure agreement on hand and ready for signatures before handing over your IP. Internally, make sure you have addressed with your employees and partners IP ownership and the limits on the use of any IP that results from your company’s involvement. And of course, if you are going to license your IP to others, make sure you are as clear as possible about how the licensee may use your IP. Is the license transferable? Is it revocable? Is it exclusive? Can they sublicense?...

 

 

• Record, Record, Record

 

Some may argue that writing down your ideas and tracking their evolution on paper has become less important now that the patent system is first-to-file. Previously, it was very important to keep detailed records in a bound notebook in case a dispute ever arose over who was the first inventor. Now, the patent goes to the first inventor to hand her application over to the USPTO. However, recording your ideas is still extremely important - there are exceptions to the first-to-file rule, and there may come a time where documentation could be helpful. The same goes for documenting the evolution of your business, its copyrights, and your use of any trademarks whether they have been registered or not. Keeping good records is a practice that should be adopted early and maintained with consistency.

 

 About the Author: 

 

David "Tyler" Bennett is a business and intellectual property attorney, and he is a partner at Verhagen | Bennett LLP.  To learn more about David, please click here.

 

For questions or comments about this post, please email David directly at: David@VerhagenBennett.com

 

To make suggestions about future posts, please email: Info@VerhagenBennett.com

 

 

© 2017 David T. Bennett — This article is for general information only. The information presented should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

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