How to Protect

Introduction

We could write a 300-page book on protecting your IP. It is a thorny subject and how best to protect it is determined by a large number of variables. It depends on your product, brand, and technology – there is a lot of variation in what risks apply to you and what options you could take to protect yourself.

We HIGHLY RECOMMEND that you consult with an IP lawyer to determine your best course of action. This section is only an introduction on the topic and does not replace the advice of a lawyer.

Best Practices

When it comes to protecting your intellectual property, the government is your best friend. Here are some steps you can take, which we will define in more detail below:

  • Use digital rights management systems
  • Document your ideas and discoveries
  • Create strong non-disclosure agreements
  • Maintain strong, mutually beneficial relationships with your partners

Digital Rights Management System (DRM’s)

DRM’s is a category of technology that is used to control and manage access to copyrighted material. It is used typically by authors, musicians, and other creators. But that can include software or online media. Types of digital rights management systems include:

  • Software Licenses
  • User Authentication
  • Proxy Servers
  • Virtual Private Networks (VPN)
  • Product Designed to Only Work with Specialized Software and/or Hardware

Each one of these could take a book to describe – and this list is not complete. Let’s look at a one of the easier ones to implement and start with User Authentication. UA could be as simple as you having a log in and password to access your system (for customers, staff, etc.) that includes extra steps to authenticate the user such as sending a code to their phone or email.

Documenting Ideas and Discoveries

There are many reasons it is important to keep records of your product and services for your business. And it is important to start at the earliest stages of development, when you are designing your product. The type of documentation you could create (and keep on file) includes communication with outside parties, dated and signed design drawings, orders with suppliers, etc. These are especially useful for documenting IP when they are dated, signed, and have been shared with more than one person.

These type of documents can provide evidence you own the design. This can be broken down into two types of documents – internal documents and external documents:

Internal DocumentsExternal Documents
Team Documentation
Emails, Slack Messages, Internal Communications
Product Manuals
Describes the function and features of your product
Reference Documentation
Design Drawings, Research Documents, etc.
User Guides
A guide for how to best use your product
Project Documentation
Engineering Drawings, Approved Samples, Schematics, etc.
Product Description
Any descriptions of the look, function, or usage of your
product on packaging and advertising materials

Strong Non-Disclosure and Non-Compete Agreements

Let me caution you by saying too many people rely on these documents as the sole basis of their IP protection. They call and tell me their customer or supplier has copied their designs and they are so shocked! They tell me: “but we had a non-disclosure!” It is very important to understand what these agreements are for and what benefits they provide. They are not the type of thing you can sign and then (mistakenly) think that you are completely protected from IP theft.

Non-Disclosure AgreementNon-Compete Agreement
A type of legally enforceable agreement between parties
that is used to ensure that certain information will remain confidential between those parties and any others named. 
A legal agreement specifying that the other party must not enter competition with the company. Typically narrowly defined for specific industries, periods of time, etc.
•Non-disclosures do not specifically say they can’t copy your product. They say they signed parties can’t share XX information. That is not the same thing.
•The most common claims in NDA lawsuits include breach of contract, breach of fiduciary duty, misappropriation of trade secrets, copyright infringement, and other intellectual property law violations.
•Elements necessary for a non-compete agreement to be legally valid include:
•Protecting a legitimate business interest (i.e. valuable business information)
•Being reasonable in scope, time, and geographical restriction (i.e. the agreement is only enforceable within a set geographical location)
•Being supported by consideration (i.e. monetary or other type of benefit)

Strong Mutually Beneficial Relationships

It’s not just about contracts and preparing for a court fight – you want to avoid bad outcomes. One way to do that is to have a strong “win-win” relationship with your business partners. If they are succeeding it’s a good incentive for them to respect your business and support your success. As we like to say “if they can make more money with you, than without you, why would they want to compete?”

Quite frankly, this soft skill side of business is often overlooked. People get so focused on their own business that they forget that the other business also has owners, management, employees, etc. and they want to see money in the bank and feel secure about their futures. At the end of the day – all business is about the relationships. Make sure that your partners and customers feel that you want them to succeed. If it is easier for them to succeed with you than without you, then that is a major incentive for them to continue working with you – and not competing against.

Think back on a time in your life when a store, company, or business partner earned your loyalty because they treated you fairly. That should be your goal.