When it Comes to Your Company’s Intellectual Property, Failing to Plan is Planning to Fail

Every business has important intellectual property (“IP”) that requires management and protection, even if the creation of IP is not your primary business. For instance, virtually every business today has valuable trademarks, logos, domain names, social media handles, video, graphics, and audio content (such as podcasts), customer lists, business strategies, and/or other proprietary and confidential information. If your company is in the business of creating IP (for example as software and app development), the survival of your business is dependent on IP risk management.

IP risk management is a critical need for all businesses, and if your company fails to plan, you are planning to fail.

Business risks related to intellectual property include the risk of your company losing its IP rights and assets before they are adequately protected and the risk of infringement claims.

HAVE AN IP PROTECTION AND RISK MANAGEMENT PLAN.

  1. Make Someone Accountable. Every company, regardless of size, should designate a company officer or other employee to be accountable for IP and implement risk management strategies so that the potential for IP loss (even inadvertently) is lessened.
  2. Have an IP risk management plan. A solid IP risk management plan should:
    • Identify potential weak points in your policy and infrastructure so that you can appropriate steps; 
    • Include periodic “audits” within your business to assess any new weaknesses or vulnerabilities;
    • Include a periodic review of every company system, process, and standard contract. For instance:
      • Conduct a cybersecurity review that includes employees’ networking setups when working from home, remotely, or in shared settings, which increases the probability of a leak; 
      • Periodically review your company’s standard contracts and employees; 
      • Educate your employees;
      • Assess (and properly manage) your online presence, use of domains, websites, social media sites, and online influencers. 
  3. Take Action When Needed. Even the best-laid plans are ineffective if you fail to timely act when an issue or gap in protection arises. Mitigate risk by the active implementation of an IP protection plan that ALL employees (including low level) are aware of and understand. 

Be proactive in protecting your IP, for once it is lost, it impacts your entire business.

A FRAMEWORK FOR IP MANAGEMENT.

A business can mitigate risk and protect its valuable assets by ensuring that intellectual property rights are safeguarded at all stages of development.

Even a basic IP management plan should include the following priorities:

  • Education of employees at all levels – help your employees understand what IP is and why is it important that they protect it;
  • Inclusion of proper IP ownership and protection clauses in all relevant company agreements, including founder/employment/contractor agreements, employee handbooks, customer agreements, service agreements, social media agreements, advertising contracts, and enforcing when off-boarding or terminating agreements;
  • Division of software development into environments or modules so that employees and contractors only access the code that they need to do their work;
  • Implementation of an invention disclosure process with incentives, making timely decisions on the type of protection (patent or trade secret) and managing accordingly. Employees need to be clear that inventions resulting from the performance of their work for the business are owned by the business, unless others agreed in writing.
  • Mining for inventions regularly and/or include IP checkpoints in the product and service development process.
  • Regular monitoring to ensure IP has not been misappropriated and taking immediate actions where concerns and/or misappropriation has been identified;
  • Reviewing cybersecurity systems regularly and upgrading to state-of-the-art as needed;
  • Enforcing a policy around the use of open-source software and monitoring compliance to software and other licenses;
  • Monitoring trademark usage and ensuring that valuable company marks are protected, whenever feasible, through registration and use of trademark symbols;
  • Management of company social media, websites, and online activity for any vulnerabilities, risks, or misappropriations.

An employer should assume that employees have a low level of IP literacy and understanding unless your business is to create IP and formal training of employees has been done. Our Firm routinely provides IP “lunch and learns” for employers to provide a basic level of employee training on what constitutes IP and help employees understand their role in protecting the IP of their employer. The creation of standardized contracts, agreements, company handbook language and policies, and social media use policies is an investment that is worth its weight in gold for any size business in today’s fast-paced online digital environment and is not unduly difficult, or expensive, for even a small company to implement. Contact us for advice about the IP needs of your business and how we can help you plan to succeed with your company’s IP!

© 2022 Cami Boyd. All Rights Reserved

The lawyers of Musgrove Law Firm, P.C. are available to assist our clients with intellectual property; mergers & acquisitions; complex business; federal, state, and local income tax matters; and real estate and estate planning matters among our specialties. Our goal is to be not only excellent lawyers but true business partners with our valued clients. Contact us today to schedule a consultation regarding your important legal matters.