Early Stage Protection of Intellectual Property

Early Stage Protection of Intellectual Property

Pete Tormey not only gives practical advice for how to protect your startup's intellectual property, but even goes so far as to define the different types of intellectual property you may be dealing with. With more than 13 years in the business of obtaining IP protection for startups and technology businesses, Tormey knows his stuff. 

Top Takeaways

1. How Should You Think of Your IP?

When you protect your intellectual property, you're not necessarily protecting your idea, but rather your expression of an idea. The best way to think about IP is as a sustainable competitive advantage. How do you know something may qualify as your IP? Well, does it make you better, faster or more expensive than your competition? Would you be uncomfortable or upset if your competitor started doing something the exact same way you did? Than that "something" may just be your IP. 

2. What are the Basic Forms of IP?

The top three types of IP are trade secrets (or your "secret sauce"), copyrights (primarily for artists, writers and the like), trademarks (of your names and logos) and patents (designs, new things and new processes that aren't exactly obvious).

3. Non-Disclosure Agreements

A non-disclosure agreement is one way of attempting to protect your IP, but they're not perfect at all. It's an agreement to basically not disclose your company's secrets. They're for only non-public information, and should spell out exactly what should be kept secret. It can be difficult to get non-disclosure agreements signed, though, particularly with investors, and particularly if they're on the long side. Plus, they're hard to enforce. 

4. Trade Secret Enforcement

Trade secrets are actually somewhat easier to enforce, because courts of law will help you protect them. However, you have to actually keep trade secrets...secret. You have to act like they're secret. Often, trade secrets aren't known by everyone in a company -- things like recipes, special processes, etc. are known only by those on a need-to-know basis.

5. Copyright Protection

How do you protect your copyrights? Well, the copyright belongs to an author as soon as a work is in tangible form. Copyrights are easy to protect, and do not need to be registered, but if you register them, you can sue for damages if needed. 

6. Trademark Protection

Trademark registration protects names and logos. While products change over time, brand names provide lasting value. Registering your trademark defends a brand name against dilution or misuse by others. No one else can put your name or logo on something you didn't make. 

7. Patent Protection

What can you patent? You can patent a process (including software), machinery (processing devices), articles of manufacture and composition of matter. Patents will provide defensive rights allowing you to prevent someone else from making or using an invention. However, they do not provide you the right to make or use your invention. The best patents are on core technologies, not small improvements on a previous invention. In the United States, the patent goes to the first inventor to file an application (so dates matter!). You also have to apply for a patent within one year of first use or first offer for sell. 

8. Basic IP Legal Advice

Get a signed non-disclosure agreement from everyone who has access to your trade secrets. Then, get a signed invention/copyright assignment agreement from all designers and engineers (if you don't, a logo designer could potentially come back to you years later and say you're using a logo they have a copyright for, or something similar). If you own intellectual property, you can license it or sell it, and franchise your IP. Plus, IP portfolios impress investors, because it shows you have something to support your ideas. 

About The Speaker

Pete Tormey

Pete Tormey

Managing Partner at Antero & Tormey LLP

Over 7 years experience obtaining Intellectual Property protection for start-up and small high technology businesses. Bring entrepreneurial design and marketing experience to the legal relationship to provide reliable counsel for growing businesses. Specialties: All forms of Intellectual Property counsel for high tech businesses.

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