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As your company grows and becomes more mature (or even if you already are a mature enterprise), it is important to begin investing in protecting your intellectual property. This is why you see companies begin to hire IP lawyers in house, make strategic IP acquisitions, and adopt programs to incentivize employees to file patents as they grow. There is incredible value in not only establishing, but protecting your IP portfolio. But, if you’re reading this, you already know that. So, what are the risks? How do we make sure this process goes swimmingly well in terms of cost, organizational change, and end goals.
For one, while wearing a legal hat, we can start by reducing the downside. With that lens, without further adieu, here are a number of ways your company can drop the ball around Intellectual Property goals:
Creating Risk in Filings Converting to Patents
The cost of filing a patent is expensive. First you have to file the provisional patent, which not only includes the cost of developing the technology or novel invention, but also the time and effort associated with drafting the documentation itself. The development costs can be anywhere from a few hundred dollars to millions of dollars in product and engineering costs. The filing work will likely amount to thousands of dollars. This means it is quite important that your filings have a high conversion rate.
Failing to Protect Trade Secrets
You invested a lot of money into developing trade secrets. But, courts can find that what you classified as a secret was not actually very “secret.” The reason? You failed to treat the information in a manner consistent with confidentiality or secrecy. By failing to do so, your incredibly valuable information will lose all it’s status as protected information. That can mean that a competitor can freely use the information that cost you so much to develop to compete with you. A fantastic example of this relates to recipes. There’s a reason that nobody actually knows the identities of the individuals who have access to Coca-Cola’s secret recipe for their syrup (which they house in a physical vault) or that KFC’s twitter account can troll the public by following 6 guys named Herb and the 5 Spice Girls.
Publicly Sharing Information that is not yet claimed as Intellectual Property
With every claim, there must be stakes. If you think back to the times of the Gold Rush, if you claimed a plot of land that you intended to mine for gold, you had to identify what was yours vs. what wasn’t. This was done with stakes. If you put four stakes in the ground on the four corners of your plot, there was little question about who owned that plot.
While times have changed, the stakes have not. When you publicize information that you have developed, you are staking a claim. If that information is something that you consider intellectual property, you have to validate that claim and follow-through with your intentions. Marke your territory and let it be known that “this land is yours.” The government (as the arbiter of intellectual property claims) must ensure that ownership is decided, recognized, and respected. In order to arbitrate effectively, the government must set a time limit to the item at hand. As such, you have one year to effectively stake your claim. Publicly sharing Intellectual Property starts a ticking clock. If you fail to manage this clock, you’re going to have a big problem 364 days from now. That means paying lawyers a rush fee to try to get a sub-par filing submitted, or worse, abandoning your claim altogether.
Failing to Train Employees About Best Practices
When your employees are developing intellectual property, they become naturally excited about the proposition of creating something of great value. As a side effect of that excitement, they may want to try to validate that their novel creation is indeed novel and unique. As such, they will inevitably search the web for similar or related patents. They will also likely share these findings internally with their co-creators (or even a broader group of individuals). This behavior creates a duty to disclose the related patents to the USPTO. With this behavior, your employees are unconsciously providing the USPTO with a roadmap of related filings. Not only does this act inspire their co-inventors to search for more (possibly unrelated) filings, but it also makes the likelihood of the filing being granted lower.
Where this behavior gets incredibly problematic is when there is the potential for litigation. If there is active litigation between organizations (or even the potential of such litigation), your employees are creating massive liability with their behavior because they are providing ammunition to opposing counsel for any and all arguments they wish to make. The long and short of the issue is that your Intellectual property portfolio suffers considerably.
Sharing Intellectual Property Information with Specific 3rd Parties
Invention is a collaborative process. It has been for millenia. However, the people your employees collaborate with should be their co-inventors. This rule breaks if they (intentionally or not) collaborate with a 3rd-party that may lay claim to their work. This can be as simple as accidentally copying a supplier on schematics for a new product. Mistakes like these create a massive liability for your company when it comes to the ownership of the intellectual property. As such it is incredibly important that they be avoided at all costs.
One solution that companies can implement in order to protect their intellectual property portfolio that avoids all the pitfalls discussed above is LitLingo. LitLingo monitors all communications that relate to intellectual property and can intelligently prevent mistakes from being made. The end result is reduced legal costs, reduced mistakes, stronger claims on the inventions your team has worked so hard to develop, and an intellectual property portfolio that is protected, respected, and creates value for years to come.
Interested in learning more about LitLingo? Feel free to use the link below to contact us.