07 Feb 2008 @ 11:15 AM 

I have been thinking about putting a post together on IP for the last few days. Having an effective IP strategy is more and more important for small businesses, but all too often entrepreneurs put off protecting their brands or ideas because of the expense involved. This can be a fatal mistake to your business. While, on one hand, there is expense involved in protecting intellectual property, much of this expense can be managed by educating oneself on IP. There are a number of helpful resources available to small businesses that will help you get up to speed.

First, one from the US Patent and Trademark Office (IP central in the United States’ government) geared toward small businesses: http://www.uspto.gov/smallbusiness/. This site has very introductory information that will help entrepreneurs and small business owners understand the different types of IP and help them identify how and what to protect. The site includes links to tools, documents and online forms that will educate you on IP and, in some cases, begin or complete some registration activities online.

A second government site that has some useful information on IP strategy development is http://www.sba.gov/tools/resourcelibrary/publications/serv_pub_prods.html. This page has links to documents that, although not written recently, cover some good general principles of IP protection and exploitation.

You can read those resources on your own, but let’s summarize quickly some of the different types of intellectual property you may need to protect. 

First, you’ll want to protect ideas that are embodied in inventions or significant improvements to existing products. This type of protection is called a patent and requires that the inventor have come up with some truly remarkable differentiation from industry and product practices of the past (prior art). Patents also generally require a level of innovation and insight that would not be readily evident to your average industry participant. Getting effective patent protection for your innovation really requires the assistance of a good IP attorney. He or she will help you make sure that your work is not infringing on (i.e., resembles too closely in form or function) the work of someone else who has registered a patent application. The patent attorney will then help you craft statements on your patent application that will be specific enough to help your patent withstand future scrutiny yet broad enough to give you effective protection against copycats.

You protect your brands through trademark protection. There are online resources from the USPTO that will allow you to search for use or registration of your desired name by others. Protection is limited to the class of products you will work in. Once you have ensured that the mark is clear, you can even register the mark yourself through the USPTO website, if you feel comfortable doing so. This will save money in many circumstances, but you should still obtain legal advice when developing your overall US and international trademark strategy. In the US, common law provides trademark protection for some use of unregistered trademarks as well, though reliance on common law only can be risky in some cases or limit the breadth of your protection. If you are going to rely on your brand and build value in it, you should consult with an attorney about your options. 

You protect your “written” ideas through copyright. Under US law, copyrighted works are generally protected from the moment of creation for a period of the life of the author plus 70 years. For works made “for hire” (made by one person on behalf of another for some kind of pay or other consideration) the protection lasts 95 years from the date of publication, or 120 years from the date of creation, whichever is shorter. “Written” ideas include not only text, but also images, music, motion pictures and other artistic works that are fixed in a tangible form. Copyrights are enforceable without any kind of government registration, though registration can also be beneficial. For more information, see http://www.copyright.gov/.

Finally, you can also protect your processes and inside knowledge just by keeping it secret. Trade secrets are a defensible form of IP protection. The key is to take adequate precautions to make sure that no one can readily discover your secret process without going to considerable lengths to circumvent your protection. Often, these protections take the form of tight physical security and Non-Disclosure Agreements (“NDAs”) Think Coca-Cola’s formula. It is kept in a bank vault, known only to a few people, and those people are bound by NDAs and their actions have some tight controls. In the information age, the use of a well-drafted NDA and strong discretion in the disclosure of mission critical information are keys to an effective Trade Secret protection strategy. If you have taken adequate precautions and an individual or competitor circumvents your efforts, you may be able to stop their infringing activities or be awarded compensatory damages by a court. 

Once you have an idea of what kind of IP you are trying to protect, you can find additional information readily available on the internet, though always do what you can to make sure your internet sources are reliable before relying on them too heavily.

Posted By: TJ
Last Edit: 11 Feb 2008 @ 11:30 AM

Categories: Entrepreneurism, Legal


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